T.C. Summary Opinion 2006-158
UNITED STATES TAX COURT
XHEVAIR FERKO, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 14088-05S. Filed September 26, 2006.
Xhevair Ferko, pro se.
Carrie L. Kleinjan, for respondent.
RUWE, Judge: This case was heard pursuant to section 74631
in effect when 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.
1
Unless otherwise indicated, section references are to the
Internal Revenue Code in effect for the year in issue.
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Respondent determined a deficiency of $2,903 in petitioner’s
2004 Federal income tax. The issues for decision are: (1)
Whether petitioner’s proper filing status is head of household,
as petitioner contends, or married filing separately, as
respondent contends, and (2) whether petitioner is entitled to
claim an earned income credit.
Background
Some facts have been stipulated and are so found. The
stipulation of facts and the attached exhibits are incorporated
by this reference. When the petition was filed, petitioner
resided in Philadelphia, Pennsylvania.
Respondent received petitioner’s 2004 Federal income tax
return on April 15, 2005. Petitioner reported an earned income
credit of $2,903, claimed two dependents,2 and reported his
filing status as single. Respondent mailed to petitioner a
notice of deficiency disallowing the earned income credit and
determining a deficiency of $2,903. Respondent also changed
petitioner’s filing status from single to married filing
separately.
Petitioner was legally married to Vera Ferko throughout
2004. At no time did petitioner and Mrs. Ferko have a legal
separation. Petitioner, his spouse, and their four children
2
Petitioner claims to care for only two of his four
children that live in the house while his wife cares for the
other two children.
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resided in the same house on Cambria Street in Philadelphia,
Pennsylvania until November 21, 2004,3 when they moved to
Englewood Street in Philadelphia, where they continue to live in
the same house. The Cambria Street residence consisted of three
bedrooms, one kitchen, a living room, a dining room, and two
entrances. The Englewood Street residence is similar, but
slightly larger. Both houses are single family residences.
Discussion
1. Head of Household Filing Status
Section 2(b) defines head of household. As relevant here,
section 2(b)(1) provides that an individual shall be considered a
head of a household if such individual is not married at the
close of the taxable year. An individual shall be treated as not
married at the close of the taxable year if such individual is so
treated under the provisions of section 7703(b). Sec. 2(c).
Section 7703(b) provides that an individual who is married
shall not be considered as married if four requirements are
satisfied: (1) The individual files separately; (2) the
individual 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 who is the tax dependent of such individual; (3)
3
Petitioner originally testified that the family moved on
Nov. 21, 2005, but the rest of the record establishes Nov. 21,
2004, as the date they moved. We treat Nov. 21, 2004, as the
date of the move.
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the individual furnishes over one-half the cost of maintaining
such household during the taxable year; and (4) for the last 6
months of the taxable year, the individual’s spouse is not a
member of such household.
Petitioner and Mrs. Ferko were married throughout the 2004
tax year. Petitioner, his spouse, and their children lived in
the same house from January 2004 until they moved on November 21,
2004. After the move, they all continued to reside together in
the new residence through the remainder of 2004. Petitioner
contends that although he and his wife shared these houses, since
2003 they have lived as if they were separated and maintained
separate households.
The pivotal issue is whether petitioner and Mrs. Ferko were
living apart in separate households. If they were not living
apart in separate households, then section 7703(b) would not have
applied and petitioner’s filing status was married filing
separately and not head of household.
The concept of “living apart” has been considered by this
and other courts. Generally, “living apart” connotes living in
separate residences. Lyddan v. United States, 721 F.2d 873, 876
(2d Cir. 1983); Washington v. Commissioner, 77 T.C. 601, 604
(1981). The Court of Appeals for the Eighth Circuit disagreed
with the general view of “living apart”, finding that such a
determination should be made based on the facts and circumstances
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of the case. Sydnes v. Commissioner, 577 F.2d 60, 62 (8th Cir.
1978), affg. in part and revg. and remanding in part 68 T.C. 170
(1977).
The Tax Court has continued to follow the views expressed in
Washington v. Commissioner, supra at 604-605, in which we stated
that “the Court should not be required to delve into the intimate
question of whether husband and wife are in fact living apart
while residing in the same house.” See McAdams v. Commissioner,
118 T.C. 373, 378 (2002); Chiosie v. Commissioner, T.C. Memo.
2000-117; Dawkins v. Commissioner, T.C. Memo. 1991-225. In
relation to sections 2 and 7703, we have held that living apart
required geographical separation and living in separate
residences. See McAdams v. Commissioner, supra (citing Chiosie
v. Commissioner, supra, Hopkins v. Commissioner, T.C. Memo. 1992-
326).
In view of the foregoing, we hold that petitioner and his
wife were not living apart in 2004. Accordingly, petitioner is
not considered unmarried pursuant to section 7703(b), and his
filing status is married filing separately.
2. Earned Income Credit
Section 32 provides that certain individuals may be entitled
to an earned income credit if they satisfy certain requirements.
One of the requirements is that the taxpayer, if married (within
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the meaning of section 7703), must file a joint return with his
or her spouse. Sec. 32(d).
We have already found that petitioner was married throughout
2004. Because petitioner failed to file a joint return for 2004,
we hold that he is not entitled to an earned income credit
pursuant to section 32. See Chiosie v. Commissioner, supra.
To reflect the foregoing,
Decision will be entered
for respondent.