                  T.C. Summary Opinion 2010-175



                      UNITED STATES TAX COURT



                     AFI ABDI, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 18526-09S.            Filed December 22, 2010.



     Afi Abdi, pro se.

     Derek W. Kaczmarek, for respondent.



     GERBER, Judge:   This case was heard pursuant to the

provisions of section 74631 of the Internal Revenue Code in

effect when the petition was filed.   Pursuant to section 7463(b),

the decision to be entered is not reviewable by any other court,


     1
      Unless otherwise indicated, all section references are to
the Internal Revenue Code in effect for the year at issue, and
all Rule references are to the Tax Court Rules of Practice and
Procedure.
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and this opinion shall not be treated as precedent for any other

case.

     Respondent determined a $4,132 deficiency in petitioner’s

2008 Federal income tax and a $826.40 penalty under

section 6662(a) and (b)(1).    At trial respondent conceded the

penalty, leaving the following issues for the Court’s

consideration:   (1) Whether petitioner is entitled to head of

household filing status; and (2) whether petitioner is entitled

to the earned income tax credit.

                          Background

     Petitioner resided in Arizona when his petition was filed.

Petitioner, his wife, and their five children resided in the same

dwelling for the entire 2008 taxable year.    Petitioner and his

wife were married before 2008 and were married throughout the

2008 tax year.

     On his 2008 Federal income tax return, petitioner reported

his filing status as “head of household” and claimed two

dependent children.   He also sought an earned income tax credit

of $4,132.   Respondent determined that petitioner’s filing status

was “married filing separately” and that he was not entitled to

an earned income tax credit.

                          Discussion

     Generally the Commissioner’s notice of deficiency

determinations are presumed correct, and taxpayers bear the
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burden of proving otherwise.   Rule 142(a); Welch v. Helvering,

290 U.S. 111, 115 (1933).   There is no question in this case

concerning the burden of proof.

     In the circumstances of this case, the fact that petitioner

was married and resided with his wife throughout the entire 2008

taxable year causes him to be disqualified from claiming head of

household filing status under section 2(b).       Although there are

some exceptions to that general rule, petitioner has not shown

that any exception applies.

     Petitioner also claimed an earned income tax credit.       Under

section 32, that credit is available to individuals who meet

certain requirements.   Under section 32(d), a married individual

is eligible for the credit only if he files a joint return for

the taxable year.   Petitioner did not file a joint return for the

2008 taxable year, and, accordingly, he is not entitled to an

earned income tax credit.

     To reflect the foregoing,

                                              Decision will be entered

                                         for respondent as to the

                                         income tax deficiency and for

                                         petitioner as to the accuracy-

                                         related penalty.
