T.C. Summary Opinion 2004-33
UNITED STATES TAX COURT
EBRAHIM ELSAWAH, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 19046-02S. Filed March 18, 2004.
Ebrahim Elsawah, pro se.
Sylvia L. Shaughnessy, for respondent.
GOLDBERG, Special Trial Judge: This case was heard pursuant
to the provisions of section 7463 of the Internal Revenue Code in
effect at the time the petition was filed. The decision to be
entered is not reviewable by any other court, and this opinion
should not be cited as authority. Unless otherwise indicated,
subsequent section references are to the Internal Revenue Code in
effect for the year in issue.
- 2 -
Respondent determined a deficiency in petitioner’s Federal
income tax of $3,301 for the taxable year 2000. The issue for
decision is whether petitioner is treated as not married under
section 7703(b), thereby entitling him to head-of-household
filing status and an earned income credit.
Some of the facts have been stipulated and are so found.
The stipulation of facts and the attached exhibits are
incorporated herein by this reference. Petitioner resided in El
Cajon, California, on the date the petition was filed in this
case.
Petitioner and his former wife, Laila M. Elsawah (Ms.
Elsawah), received an Islamic divorce on April 2, 1999.1 The
following month, petitioner filed a petition for dissolution of
marriage with the Superior Court of San Diego County. However,
this suit was abandoned, and no divorce was obtained as a result
thereof. After receiving the Islamic divorce, Ms. Elsawah
continued residing in the same residence as petitioner, a
residence which they jointly owned. Ms. Elsawah moved into the
basement while petitioner and their two children resided in the
upper levels. Ms. Elsawah, who was working and who was involved
in another relationship, spent little time in the residence. She
permanently left the residence in October 2001. Throughout this
1
This Court need not, and clearly cannot, rule upon the
validity of such a religious divorce. We accept petitioner’s
testimony that he received the divorce.
- 3 -
period, petitioner and Ms. Elsawah had remained legally married;
they were finally divorced after Ms. Elsawah filed a second
petition for dissolution with the Superior Court of San Diego
County on January 17, 2002. After the divorce, the children
continued living with petitioner, and Ms. Elsawah was given
visitation rights.
Petitioner filed a Federal income tax return for taxable
year 2000 on which he claimed head-of-household filing status and
an earned income credit of $3,301. In the notice of deficiency,
respondent determined that petitioner’s filing status was married
filing separately and disallowed the earned income credit.
As is relevant here, a taxpayer is entitled to head-of-
household filing status only if the taxpayer is not married at
the close of his taxable year. Sec. 2(b)(1). A taxpayer who is
married at the end of the year is entitled to an earned income
credit only if a joint return is filed for the taxable year.
Secs. 32(d), 7703(a)(1). Thus, because petitioner did not file a
joint return with Ms. Elsawah, he is not entitled to either head-
of-household filing status or the earned income credit if he was
married at the end of 2000.
Both parties agree that petitioner and Ms. Elsawah were
legally married until some time after January 17, 2002. However,
for purposes of filing status and the earned income credit,
certain married individuals who live in separate households from
- 4 -
their spouses may be treated as not being married at the end of
the taxable year. Secs. 2(c), 32(d), 7703(b). For an individual
to qualify for this treatment, the three requirements of section
7703(b) must be met. The parties agree that petitioner meets the
first two requirements, but disagree as to whether petitioner
meets the third requirement, which requires that “during the last
6 months of the taxable year, such individual’s spouse is not a
member of * * * [the individual’s] household”. Sec. 7703(b)(3).
Petitioner argues that he and Ms. Elsawah were separated
after the Islamic divorce in 1999--when Ms. Elsawah moved into
the basement of the family residence--and that therefore she was
not a member of his household during the year 2000. We disagree
with petitioner. For purposes of section 7703(b), “‘living
apart’ requires a geographical separation and means living in
separate residences; i.e., living under separate roofs.” Chiosie
v. Commissioner, T.C. Memo. 2000-117. This Court declines to
“explore the quality of a marriage or membership in a household
when the parties live under one roof” and to “adopt some form of
constructive absence under the circumstances.” Becker v.
Commissioner, T.C. Memo. 1995-177; see also Chiosie v.
Commissioner, supra.
Petitioner’s argument that he and Ms. Elsawah were living in
separate households is based in part upon his interpretation of
the definition of “living separate and apart” under California
- 5 -
law.2 Whether a taxpayer shares a household with a spouse for
purposes of section 7703(b) is a question of fact. Sharer v.
Commissioner, T.C. Memo. 1994-453. California law is not
relevant to this factual inquiry.
Finally, petitioner argues that the instructions in certain
IRS guidance regarding head-of-household filing status do not
state that spouses must live in different residences, only that
they “not have lived together”. This guidance is provided by the
IRS to assist taxpayers in preparing their returns. The
authoritative sources of Federal tax law are in the statutes,
regulations, and judicial decisions and not in informal
publications provided by the IRS. Zimmerman v. Commissioner, 71
T.C. 367, 371 (1978), affd. without published opinion 614 F.2d
1294 (2d Cir. 1979).
We find that because petitioner and Ms. Elsawah lived under
one roof during the year in issue, they resided in the same
household throughout that year for purposes of section 7703(b).
Petitioner therefore is not treated as unmarried at the end of
the year, and he is entitled to neither head-of-household filing
status nor the earned income credit. Secs. 2(b)(1), 32(d).
2
Specifically, petitioner cites Cal. Fam. Code sec.
771(a)(West Supp. 2004) (pertaining to separate property acquired
during marriage by spouses who are “living separate and apart”)
and In re Marriage of Norviel, 126 Cal. Rptr. 2d 148 (Ct. App.
2002) (interpreting the phrase “living separate and apart” under
Cal. Fam. Code sec. 771(a)(West Supp. 2004)).
- 6 -
Reviewed and adopted as the report of the Small Tax Case
Division.
Decision will be entered
for respondent.