                  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).
                                - 5 -

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.
