T.C. Summary Opinion 2006-31
UNITED STATES TAX COURT
NATHANIEL A. MCCULLOUGH, JR., Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 14718-04S. Filed February 21, 2006.
Nathaniel A. McCullough, Jr., pro se.
Chang Ted Li, 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, and all Rule references are to the
Tax Court Rules of Practice and Procedure.
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Respondent determined a deficiency in petitioner’s Federal
income tax of $4,649 for the taxable year 2003.
After concessions,1 the issues for decision are: (1)
Whether petitioner is entitled to head of household filing
status; (2) whether petitioner may amend his 2003 tax return by
filing a joint return after he has received a notice of
deficiency for the 2003 tax year and timely petitioned this Court
for review of such deficiency; and (3) whether petitioner is
entitled to an earned income credit for taxable year 2003.
Background
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
Baltimore, Maryland, on the date the petition was filed in this
case.
In the beginning of taxable year 2003, petitioner was
involved in a romantic relationship with Madeline Godley (Ms.
Godley). At this time, they were dating and living in separate
1
Petitioner listed KM and MH (the Court uses only the minor
children’s initials) as dependents on his tax return for the
taxable year 2003. Additionally, petitioner claimed a childcare
credit, a child tax credit, and an additional child tax credit on
his tax return for the taxable year 2003. In the notice of
deficiency, respondent disallowed petitioner’s claimed dependency
exemption deductions, childcare credit, and child tax credits.
However, before trial, respondent conceded that petitioner was
entitled to the dependency exemption deductions, childcare
credit, and child tax credits for the taxable year 2003.
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residences. On October 13, 2003, petitioner and Ms. Godley
married. After the marriage, Ms. Godley and her son from a
previous marriage moved in with petitioner and his son, also from
a previous marriage. Petitioner and Ms. Godley were still
married at the time of trial.
Ms. Godley, separate from petitioner, filed a Federal income
tax return for the taxable year 2003. On her 2003 Federal income
tax return, Ms. Godley filed as a head of household.
Petitioner timely filed his Form 1040A, U.S. Individual
Income Tax Return, for the taxable year 2003. Petitioner filed
his 2003 Federal income tax return as a head of household and
claimed dependency exemption deductions for KM and MH.
Petitioner also claimed an earned income credit with KM and MH as
the qualifying children. Additionally, petitioner claimed a
childcare credit, a child tax credit, and an additional child tax
credit on his tax return for the taxable year 2003.
On June 7, 2004, respondent issued a notice of deficiency
denying petitioner (1) head of household filing status, (2) the
claimed dependency exemption deductions, (3) the claimed earned
income credit, (4) the claimed childcare credit, and (5) the
claimed child tax credits. However, as previously noted, before
trial respondent conceded that petitioner was entitled to the
dependency exemption deductions, childcare credit, and child tax
credits for the taxable year 2003.
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On August 16, 2004, petitioner timely petitioned this Court
for redetermination of the deficiency.
Discussion2
1. Head of Household
Petitioner filed his 2003 Federal income tax return as a
head of household, and respondent changed the filing status to
single in the notice of deficiency.
Section 1(b) imposes a special income tax rate on an
individual filing as head of household. Section 2(b) provides
the requirements for head of household filing status. As
relevant here, to qualify as a head of a household a taxpayer
must (a) be unmarried at the end of the taxable year, (b) not be
a surviving spouse, and (c) maintain as the taxpayer’s home a
household that constitutes the principal place of abode of an
unmarried son or daughter. Sec. 2(b)(1)(A)(i).
Section 2(b)(1) clearly states 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”. The record of
the present case is clear that petitioner was married to Ms.
Godley at the close of taxable year 2003. It follows, therefore,
that petitioner is not entitled to head of household filing
2
We decide the issues in this case without regard to the
burden of proof. Accordingly, we need not decide whether the
general rule of sec. 7491(a)(1) is applicable in this case. See
Higbee v. Commissioner, 116 T.C. 438 (2001).
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status for the taxable year 2003. Accordingly, respondent’s
determination on this issue is sustained.
2. Joint Return
Petitioner, in his petition to this Court, requests that the
“IRS [Internal Revenue Service] refigure [sic] * * * [his] tax
for 2003 base [sic] on the filing status ‘Married Filing
Jointly’”. In other words, petitioner alleges that he should be
allowed to amend his filing status on his 2003 tax return from
head of household to married filing jointly. However, respondent
contends that pursuant to section 6013(b)(2)(B) petitioner is not
entitled to file a joint return with his spouse because the
Commissioner mailed a notice of deficiency for the taxable year
2003 to petitioner and, after receipt, petitioner timely filed a
petition in this Court.
Section 6013, in general, entitles married taxpayers to make
a joint income tax return. See sec. 6013(a). Section 6013(b)(1)
further provides even where a taxpayer has filed a separate
return for a taxable year and the time prescribed for filing has
expired, the taxpayer may nevertheless make a joint return with
his or her spouse, subject to specified limitations. One such
limitation is provided by section 6013(b)(2)(B). Section
6013(b)(2)(B) states:
(2) Limitations for making of election. The election
provided for in paragraph (1) may not be made--
* * * * * * *
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(B) after there has been mailed to either spouse, with
respect to such taxable year, a notice of deficiency under
section 6212, if the spouse, as to such notice, files a
petition with the Tax Court within the time prescribed in
section 6213;
In the present case, petitioner received the notice of
deficiency issued by respondent, and he filed a timely petition
with this Court. Therefore, pursuant to section 6013(b)(2)(B)
petitioner is not entitled to make an election to file a joint
return with his spouse for the taxable year 2003. See Mischel v.
Commissioner, T.C. Memo. 1997-350. Accordingly, respondent’s
determination on this issue is sustained.
3. Earned Income Credit
As previously stated, petitioner claimed an earned income
credit for taxable year 2003 with KM and MH as the qualifying
children. In the notice of deficiency, respondent disallowed the
earned income credit in full.
Subject to certain limitations, an eligible individual is
allowed a credit which is calculated as a percentage of the
individual’s earned income. Sec. 32(a)(1). One such limitation
applies to married individuals. Section 32(d) provides: “In the
case of an individual who is married (within the meaning of
section 7703), this section shall apply only if a joint return is
filed for the taxable year under section 6013.” Section 7703
provides that “the determination of whether an individual is
married shall be made as of the close of his taxable year”.
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As previously stated, the record of the present case is
clear that petitioner was married to Ms. Godley at the close of
taxable year 2003. Therefore, since petitioner did not file a
joint return for taxable year 2003 and, pursuant to our holding
in the present case, he is not entitled to file a joint return
with his spouse for the 2003 taxable year, petitioner is not
entitled to an earned income credit for taxable year 2003.
Respondent’s determination on this issue is sustained.
Furthermore, we have considered all of the other arguments
made by petitioner, and, to the extent that we have not
specifically addressed them, we conclude they are without merit.
Reviewed and adopted as the report of the Small Tax Case
Division.
Decision will be entered
under Rule 155.