Ferko v. Comm'r

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.
 - 3 -

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.
 - 4 -

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
 - 5 -

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
 - 6 -

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.