                       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
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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)),
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          (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.
