T.C. Memo. 1999-58
UNITED STATES TAX COURT
KATHERINE JEAN HARKLESS, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 21570-97. Filed March 1, 1999.
Katherine Jean Harkless, pro se.
Frederick J. Lockhart, for respondent.
MEMORANDUM OPINION
DINAN, Special Trial Judge: This case was heard pursuant to
the provisions of section 7443A(b)(3) and Rules 180, 181, and
182.1
1
Unless otherwise indicated, all section references are
to the Internal Revenue Code in effect for the taxable years in
issue. All Rule references are to the Tax Court Rules of
Practice and Procedure.
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Respondent determined deficiencies in petitioner's Federal
income taxes for 1995 and 1996 in the amounts of $1,318 and
$1,743, respectively.
The issues for decision are: (1) Whether petitioner is
entitled to claim head of household filing status for the taxable
years in issue, and (2) whether petitioner is entitled to earned
income credits for the taxable years in issue.
Some of the facts have been stipulated and are so found.
The stipulations of fact and attached exhibits are incorporated
herein by this reference. Petitioner resided in Evans, Colorado,
on the date the petition was filed in this case.
Petitioner was married to Tristrim Robert Harkless on
January 13, 1984. She was still married to Mr. Harkless and
resided with him and their daughter, Brook Harkless, at their
home in Evans, Colorado, during her entire 1995 and 1996 taxable
years.
The first issue for decision is whether petitioner is
entitled to claim head of household filing status for the taxable
years in issue. Section 2(b)(1) provides that "an individual
shall be considered a head of a household if, and only if, such
individual is not married at the close of his taxable year".
Petitioner was married and resided with Mr. Harkless during her
entire 1995 and 1996 taxable years. They were not legally
separated under a decree of divorce or of separate maintenance at
any time. Therefore, she is not treated as not married under
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section 2(b)(2)(B) or section 2(c). Sec. 7703(b). Petitioner
argues, however, that she should be treated as not married as of
the close of each of the taxable years in issue under section
2(b)(2)(C) because Mr. Harkless declared himself a nonresident
alien on August 26, 1993. We have reviewed Mr. Harkless'
declaration. It consists primarily of common tax protester
arguments which have been summarily rejected by this Court for
many years. Despite his misguided views of his residency and
citizenship, we find that Mr. Harkless was not a nonresident
alien at any time during 1995 and 1996. We hold that petitioner
may not be treated as not married under section 2(b)(2)(C) and is
not entitled to head of household filing status for the taxable
years in issue. We further hold that petitioner's filing status
for the taxable years in issue is married filing separately.
The second issue for decision is whether petitioner is
entitled to earned income credits for the taxable years in issue.
Section 32(d) provides that an individual who is married must
file a joint return with her spouse for the taxable year in order
for section 32 to apply. We hold that petitioner is not entitled
to earned income credits for the taxable years in issue because
she did not file joint returns with Mr. Harkless for such years.
To reflect the foregoing,
Decision will be entered
for respondent.