T.C. Memo. 2004-145
UNITED STATES TAX COURT
MANUEL JULIAN DIAZ, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 13876-02. Filed June 17, 2004.
Manuel Julian Diaz, pro se.
Timothy Maher, for respondent.
MEMORANDUM FINDINGS OF FACT AND OPINION
GERBER, Chief Judge: Respondent determined a deficiency of
$5,179 in petitioner’s Federal income tax for 2001. After
concessions by respondent, the sole issue for consideration is
- 2 -
whether petitioner qualifies for the earned income tax credit
under section 32(a).1
FINDINGS OF FACT
Petitioner resided in Miami, Florida, at the time that he
filed his petition. On July 23, 1997, petitioner married Eunice
Pereyra. Petitioner and his wife had two children, a daughter
born on May 14, 1998, and a son born on January 16, 2000.
Petitioner’s daughter and son lived with petitioner at all times
during 2001.
Petitioner’s wife did not have legal resident status in the
United States and did not possess a Social Security number.
During 2001, petitioner’s wife left the United States for Mexico.
Petitioner and his wife did not file a joint Federal income
tax return for 2001. Petitioner filed electronically a Form
1040, U.S. Individual Income Tax Return, for 2001. On his
Form 1040, petitioner claimed “head of household” filing status.
Petitioner remained married throughout 2001 and through the
trial of this case in December 2003. Petitioner’s wife did not
return to the United States.
In the notice of deficiency, respondent determined that
petitioner’s filing status was “married filing separate” and
1
Unless otherwise indicated, all section references are to
the Internal Revenue Code in effect for the year in issue, and
all Rule references are to the Tax Court Rules of Practice and
Procedure.
- 3 -
disallowed petitioner’s dependent exemptions, earned income
credit, and child tax credit. Respondent now concedes that
petitioner is entitled to claim “head of household” filing status
(and the increased standard deduction available for that filing
status), his claimed dependent exemptions, and the child tax
credit.
OPINION
Section 32(a) allows a refundable earned income credit in
amounts specified and under conditions specified in that section.
One of the conditions is that, in the case of an individual who
is married, a joint return with the individual’s spouse must be
filed for the year for which the credit is claimed. Sec. 32(d);
sec. 1.32-2(b)(2), Income Tax Regs.
For purposes of section 32(a), a taxpayer’s marital status
is determined under section 7703. Section 7703(b) provides in
pertinent part:
SEC. 7703(b). Certain Married Individuals Living
Apart.--For purposes of those provisions of this title
which refer to this subsection, if--
(1) an individual who is married (within the
meaning of subsection (a)) and who files a separate
return maintains as his home a household which
constitutes for more than one-half of the taxable
year the principal place of abode of a child (within
the meaning of section 151(c)(3)) with respect to
whom such individual is entitled to a deduction for
the taxable year under section 151 (or would be so
entitled but for paragraph (2) or (4) of section
152(e)),
- 4 -
(2) such individual furnishes over one-half of the cost
of maintaining such household during the taxable year,
and
(3) during the last 6 months of the taxable year, such
individual’s spouse is not a member of such household,
such individual shall not be considered as
married.
Petitioner has made vague and inconsistent assertions as to
when his wife left his household in 2001. He testified:
MR. DIAZ: I believe she left between June and
July of 2001. 2001, yes.
THE COURT: Has she ever returned?
MR. DIAZ: Never.
* * * * * * *
MR. DIAZ: * * * But she was not living with me
during the whole period of 2001, because, when I moved,
it was about six months that she was not even living
with me. She moved--she moved--she left the apartment
with her mother that came from Mexico and she decided
to leave.
Only in his answering brief does petitioner state categorically
that his wife left in June, asserting: “The commissioner makes
emphasis in the date in which my wife left the country to which
for me is not much of importance.” The assertion in petitioner’s
brief, however, cannot be treated as evidence. Rule 143(b). The
date on which petitioner’s wife left his household is not only
important; it is determinative. If petitioner’s wife left in
July rather than June, he is not entitled to the earned income
tax credit. See Becker v. Commissioner, T.C. Memo. 1995-177. In
the absence of reliable evidence that she left prior to July
- 5 -
2001, petitioner is not entitled to the earned income tax credit
under section 32(a).
It appears from the arguments in his briefs that petitioner
may be confused by respondent’s concession that, for purposes of
“head of household” status, petitioner may be treated as an
unmarried person. For purposes of section 2(b), dealing with
“head of household” status, the taxpayer may be considered not
married at the close of the year if “at any time during the
taxable year his spouse is a nonresident alien”. Sec.
2(b)(2)(C). The definition in that section, however, has not
been extended to other situations where marital status is
determined under section 7703 (formerly section 143). See
Kravetz v. Commissioner, T.C. Memo. 1985-496, affd. without
published opinion (D.C. Cir., Oct. 17, 1986). The specifically
applicable statutory definition cannot be disregarded even though
petitioner argues persuasively that he was disabled from filing a
joint return because of his wife’s inability to stay in the
United States legally or to obtain a Social Security number. Cf.
Peppiatt v. Commissioner, 69 T.C. 848, 853-854 (1978).
In order to reflect respondent’s concessions,
Decision will be entered
under Rule 155.