                    T.C. Summary Opinion 2007-7



                      UNITED STATES TAX COURT



                   DAYE CALVERT, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent


     Docket No.   23246-04S.          Filed January 16, 2007.


     Daye Calvert, pro se.

     Linda A. Neal, for respondent.



     COUVILLION, Special Trial Judge:   This case was heard

pursuant to section 7463 in effect when the petition was filed.1

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 hereafter
are to the Internal Revenue Code in effect for the year at issue.
This case is decided without regard to the burden of proof. In
some instances, sec. 7491 shifts the burden of proof to
respondent. Since this case involves only a question of law,
sec. 7491 is not applicable here.
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     Respondent determined a deficiency of $2,835 in petitioner’s

Federal income tax for the year 2002.

     The sole issue for decision is whether Social Security

benefits received by petitioner during 2002 are includable in

gross income under section 86(a).2

     Some of the facts were stipulated.    Those facts and the

accompanying exhibits are so found and are incorporated herein by

reference.   Petitioner’s legal residence at the time the petition

was filed was Shreveport, Louisiana.     Petitioner was married and

lived with his wife at Shreveport, Louisiana.

     Petitioner has a degree in architectural engineering and,

during the year at issue, was employed as construction

superintendent on a 2-year project at Reno, Nevada.     For the

duration of his employer’s construction contract, which included

the year 2002, petitioner rented an apartment at Reno, Nevada.

His spouse did not move to Reno but continued occupying their

residence at Shreveport, Louisiana.     At trial, petitioner

acknowledged that, from time to time, he visited his spouse at

their Shreveport home during the 2-year period he was at Reno.

He also acknowledged that he and his spouse were not separated




     2
      In the notice of deficiency, respondent determined that
petitioner earned interest income of $26 during the year at
issue. Petitioner did not address this determination at trial;
consequently, it is considered to be conceded by petitioner.
                               - 3 -


due to marital discord, and they were separated during the year

at issue solely because of his employment.

     During the year 2002, petitioner received $11,299 in Social

Security benefits.   For that year, petitioner filed a Federal

income tax return with the filing status of married, filing

separately.   He reported the $11,299 in Social Security benefits

on his return, and, based on his computation on a Social Security

benefits worksheet, he calculated that $9,604 of the $11,299

constituted the taxable portion of his Social Security benefits.

However, petitioner relied upon the language on line 9 of the

worksheet, which states:   “But if you are married filing

separately and you lived apart from your spouse for all of 2002,

enter -0- on line 20b.   Be sure you entered ‘D’ to the right of

the word ‘benefits’ on line 20a.”   Because petitioner lived at

Reno, Nevada, the entire year (except for periodic visits to his

wife), and since he was filing his return separately, he,

accordingly, did not enter any amount as income on line 20b of

his return.   However, he entered the $11,299 on line 20a and

entered the letter “D” pursuant to the directions of the Social

Security benefits worksheet.   Petitioner claims, therefore, that

no portion of his Social Security benefits is taxable.   He claims

that he lived apart from his wife for the year 2002.   In the

notice of deficiency, respondent determined that the taxable
                               - 4 -


portion of the Social Security benefits was $9,6043 and,

accordingly, determined the deficiency of $2,835.4

     The fundamental question in this case is whether petitioner

and his spouse “lived apart” from each other during the taxable

year 2002.   As noted above, petitioner lived at Reno, Nevada,

that year because of his employment but admitted that he

occasionally visited his spouse at their matrimonial domicile.

In McAdams v. Commissioner, 118 T.C. 373, 378-379 (2002), the

Court concluded that, for purposes of section 86(c)(1)(C)(ii),

“living apart” means living in separate residences at all times

during the taxable year.   This means that the taxpayer and his or

her spouse live in separate residences on each day of the year.

Dubois v. Commissioner, T.C. Memo. 2003-222.   The fact that

petitioner in this case lived in Reno, Nevada, away from his


     3
      The Social Security benefits worksheet is not required to
be filed as part of the return. At trial, however, the parties
offered into evidence the worksheet, and it shows that, even
though petitioner concluded that no portion of his Social
Security benefits was taxable, he made the computation for that
portion of the worksheet (lines 10 through 18), and that
computation reflected the taxable portion of his Social Security
benefits to be $9,604 (the identical amount determined by
respondent). Petitioner ignored that result because he
considered such result to be inconsistent with the fact that he
lived separate and apart from his spouse during that year, and,
since line 9 of the form stated that, if he “lived apart from
your spouse for all of 2002, enter -0- on line 20b”, he followed
that directive and entered zero taxable Social Security income on
his return.
     4
      The deficiency includes, additionally, the $26 in interest
income determined in the notice of deficiency.
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wife, and occasionally visited his wife, does not establish that

petitioner and his spouse were “living apart”.    In McAdams v.

Commissioner, supra at 378, the Court noted:     “Petitioner also

argues that he merely ‘visited’ his wife and did not live with

her.    In Costa v. Commissioner, * * * [T.C. Memo. 1990-572], we

concluded that intermittent visits * * * [sufficed to establish

that the spouses] did not live apart.”    The Court also cited

section 1.85-1(b)(4), Income Tax Regs., relating to employment

compensation, which states:


       A taxpayer does not “live apart” from his or her spouse at
       all times during a taxable year if for any period during the
       taxable year the taxpayer is a member of the same household
       as such taxpayer’s spouse. A taxpayer is a member of a
       household for any period, including temporary absences due
       to special circumstances, during which the household is the
       taxpayer’s place of abode. A temporary absence due to
       special circumstances includes a nonpermanent absence caused
       by illness, education, business, vacation, or military
       service.


       The Court concludes that petitioner in this case did not

live separate and apart from his wife during the year at issue.

Therefore, $9,604 of the Social Security benefits paid to him

that year constituted gross income.     Respondent is sustained on

this issue.
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    Reviewed and adopted as the report of the Small Tax Case

Division.



                                     Decision will be entered

                             for respondent.
