                  T.C. Summary Opinion 2005-140



                     UNITED STATES TAX COURT



                  IRMA J. WHITE, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 14818-03S.           Filed September 27, 2005.



     Irma J. White, pro se.

     James E. Schacht, for respondent.


     POWELL, Special Trial Judge:   This case was heard pursuant

to the provisions of section 74631 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.




     1
        Unless otherwise indicated, subsequent section references
are to the Internal Revenue Code in effect for the year in issue.
                                - 2 -

     Respondent determined a deficiency of $3,748 in petitioner’s

2001 Federal income tax.   The issue is whether petitioner is

entitled to an earned income credit in the same amount.

Petitioner resided in Milwaukee, Wisconsin, at the time she filed

her petition.

     The relevant facts and discussion of law are combined

because of the nature of the resolution of the issue.2    Section

32(a) provides for a so-called earned income credit.     Section

32(d) provides that “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”.    It is undisputed that petitioner was legally

married and was not legally separated under a decree of divorce

or separate maintenance at the end of the 2001 taxable year.       See

sec. 7703(a).    As relevant here, section 7703(b), however,

provides that if an individual is married and otherwise satisfies

the residency and support requirements of section 7703(b)(1) and

(2) and “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.”    In other words,

if a taxpayer, claiming the earned income credit, is married and

his or her spouse lived in his or her residence for the last 6


     2
        While petitioner’s marital status is a factual issue,
sec. 7491, concerning burden of proof, has no bearing on this
case.
                                 - 3 -

months of the taxable year, he or she must file a joint return

with the spouse to be entitled to the earned income credit.

     During 2001, petitioner was married within the meaning of

section 7703 and resided at 4505 North 44th Street, Milwaukee,

Wisconsin (the 4505 residence).    Petitioner’s husband (Mr. White)

moved out for a period of time and then moved back to the 4505

residence.   Petitioner could not testify as to the dates he moved

in and out of the 4505 residence.    Petitioner used a filing

status of “head of household” for her 2001 tax return.

     Mr. White testified that he moved out of the 4505 residence

in 1998 and returned in November 2001.       He further testified that

he used the filing status of “single” for his 2001 tax return.3

     The evidence is not in dispute that Mr. White lived in the

4505 residence with petitioner during the last 2 months of 2001.

Accordingly, petitioner is not entitled to claim the earned

income credit.

     Reviewed and adopted as the report of the Small Tax Case

Division.

     To reflect the foregoing,

                                         Decision will be entered

                                 for respondent.




     3
        It is not disputed that, if petitioner and Mr. White had
filed a joint return, their combined income would have exceeded
the income requirements for the credit. See sec. 32(b).
