T.C. Summary Opinion 2007-7
UNITED STATES TAX COURT
DAYE CALVERT, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 23246-04S. Filed January 16, 2007.
Daye Calvert, pro se.
Linda A. Neal, for respondent.
COUVILLION, Special Trial Judge: This case was heard
pursuant to section 7463 in effect when the petition was filed.1
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 hereafter
are to the Internal Revenue Code in effect for the year at issue.
This case is decided without regard to the burden of proof. In
some instances, sec. 7491 shifts the burden of proof to
respondent. Since this case involves only a question of law,
sec. 7491 is not applicable here.
- 2 -
Respondent determined a deficiency of $2,835 in petitioner’s
Federal income tax for the year 2002.
The sole issue for decision is whether Social Security
benefits received by petitioner during 2002 are includable in
gross income under section 86(a).2
Some of the facts were stipulated. Those facts and the
accompanying exhibits are so found and are incorporated herein by
reference. Petitioner’s legal residence at the time the petition
was filed was Shreveport, Louisiana. Petitioner was married and
lived with his wife at Shreveport, Louisiana.
Petitioner has a degree in architectural engineering and,
during the year at issue, was employed as construction
superintendent on a 2-year project at Reno, Nevada. For the
duration of his employer’s construction contract, which included
the year 2002, petitioner rented an apartment at Reno, Nevada.
His spouse did not move to Reno but continued occupying their
residence at Shreveport, Louisiana. At trial, petitioner
acknowledged that, from time to time, he visited his spouse at
their Shreveport home during the 2-year period he was at Reno.
He also acknowledged that he and his spouse were not separated
2
In the notice of deficiency, respondent determined that
petitioner earned interest income of $26 during the year at
issue. Petitioner did not address this determination at trial;
consequently, it is considered to be conceded by petitioner.
- 3 -
due to marital discord, and they were separated during the year
at issue solely because of his employment.
During the year 2002, petitioner received $11,299 in Social
Security benefits. For that year, petitioner filed a Federal
income tax return with the filing status of married, filing
separately. He reported the $11,299 in Social Security benefits
on his return, and, based on his computation on a Social Security
benefits worksheet, he calculated that $9,604 of the $11,299
constituted the taxable portion of his Social Security benefits.
However, petitioner relied upon the language on line 9 of the
worksheet, which states: “But if you are married filing
separately and you lived apart from your spouse for all of 2002,
enter -0- on line 20b. Be sure you entered ‘D’ to the right of
the word ‘benefits’ on line 20a.” Because petitioner lived at
Reno, Nevada, the entire year (except for periodic visits to his
wife), and since he was filing his return separately, he,
accordingly, did not enter any amount as income on line 20b of
his return. However, he entered the $11,299 on line 20a and
entered the letter “D” pursuant to the directions of the Social
Security benefits worksheet. Petitioner claims, therefore, that
no portion of his Social Security benefits is taxable. He claims
that he lived apart from his wife for the year 2002. In the
notice of deficiency, respondent determined that the taxable
- 4 -
portion of the Social Security benefits was $9,6043 and,
accordingly, determined the deficiency of $2,835.4
The fundamental question in this case is whether petitioner
and his spouse “lived apart” from each other during the taxable
year 2002. As noted above, petitioner lived at Reno, Nevada,
that year because of his employment but admitted that he
occasionally visited his spouse at their matrimonial domicile.
In McAdams v. Commissioner, 118 T.C. 373, 378-379 (2002), the
Court concluded that, for purposes of section 86(c)(1)(C)(ii),
“living apart” means living in separate residences at all times
during the taxable year. This means that the taxpayer and his or
her spouse live in separate residences on each day of the year.
Dubois v. Commissioner, T.C. Memo. 2003-222. The fact that
petitioner in this case lived in Reno, Nevada, away from his
3
The Social Security benefits worksheet is not required to
be filed as part of the return. At trial, however, the parties
offered into evidence the worksheet, and it shows that, even
though petitioner concluded that no portion of his Social
Security benefits was taxable, he made the computation for that
portion of the worksheet (lines 10 through 18), and that
computation reflected the taxable portion of his Social Security
benefits to be $9,604 (the identical amount determined by
respondent). Petitioner ignored that result because he
considered such result to be inconsistent with the fact that he
lived separate and apart from his spouse during that year, and,
since line 9 of the form stated that, if he “lived apart from
your spouse for all of 2002, enter -0- on line 20b”, he followed
that directive and entered zero taxable Social Security income on
his return.
4
The deficiency includes, additionally, the $26 in interest
income determined in the notice of deficiency.
- 5 -
wife, and occasionally visited his wife, does not establish that
petitioner and his spouse were “living apart”. In McAdams v.
Commissioner, supra at 378, the Court noted: “Petitioner also
argues that he merely ‘visited’ his wife and did not live with
her. In Costa v. Commissioner, * * * [T.C. Memo. 1990-572], we
concluded that intermittent visits * * * [sufficed to establish
that the spouses] did not live apart.” The Court also cited
section 1.85-1(b)(4), Income Tax Regs., relating to employment
compensation, which states:
A taxpayer does not “live apart” from his or her spouse at
all times during a taxable year if for any period during the
taxable year the taxpayer is a member of the same household
as such taxpayer’s spouse. A taxpayer is a member of a
household for any period, including temporary absences due
to special circumstances, during which the household is the
taxpayer’s place of abode. A temporary absence due to
special circumstances includes a nonpermanent absence caused
by illness, education, business, vacation, or military
service.
The Court concludes that petitioner in this case did not
live separate and apart from his wife during the year at issue.
Therefore, $9,604 of the Social Security benefits paid to him
that year constituted gross income. Respondent is sustained on
this issue.
- 6 -
Reviewed and adopted as the report of the Small Tax Case
Division.
Decision will be entered
for respondent.