                  T.C. Summary Opinion 2002-134



                     UNITED STATES TAX COURT



               PEDRO PELAYO-ZABALZA, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 12940-01S.              Filed October 15, 2002.


     Pedro Pelayo-Zabalza, pro se.

     Christian A. Speck, for respondent.


     ARMEN, Special Trial Judge:     This case was heard pursuant to

the provisions of section 7463 of the Internal Revenue Code in

effect at the time that the petition was filed.1    The decision to

be entered in this case is not reviewable by any other court, and

this opinion should not be cited as authority.



     1
       All subsequent section references are to the Internal
Revenue Code in effect for 2000, the taxable 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 for the taxable year 2000 in the amount of $4,679.

     After a concession by respondent,2 the issues for decision

by the Court are as follows:

     (1) Whether petitioner is entitled to head of household

filing status.    We hold that he is not.

     (2) Whether petitioner is entitled to an earned income

credit.   We hold that he is not.

     An adjustment to the amount of petitioner's standard

deduction is a purely mechanical matter, the resolution of which

is dependent on our disposition of the disputed issue regarding

petitioner’s filing status.

Background

     This case was deemed to be submitted fully stipulated, and

the facts stipulated are so found.      Petitioner resided in

Sacramento, California, at the time that his petition was filed

with the Court.

     Throughout the taxable year 2000, petitioner was married to

Rita Pelayo and lived with her, together with the couple’s two

daughters, in Sacramento, California.

     During 2000, petitioner was employed as a laborer and

received wages in the amount of $11,767.      Rita Pelayo was also


     2
        Respondent concedes that petitioner is entitled to
deductions for dependency exemptions for his two minor daughters,
Alejandra Anae and Araceli.
                                - 3 -

employed in 2000 and received wages in the amount of $2,576.

     Petitioner timely filed a Form 1040A, U.S. Individual Income

Tax Return, for the taxable year 2000.    On his return, petitioner

designated his filing status as head of household and claimed the

standard deduction in the amount corresponding to that filing

status.   Petitioner also claimed:   (1) Deductions for dependency

exemptions for his two minor daughters, Alejandra Anae and

Araceli, and (2) the maximum earned income credit.   Petitioner

did not claim a child tax credit.3

     Petitioner reported on his income tax return for 2000 the

wages that he received, and he attached to his return a Form W-2,

Wage and Tax Statement, from each of his two employers.

Petitioner did not report on his return the wages that his spouse

received, nor did he attach to his return the Form W-2 from her

employer.

     Petitioner’s income tax return for 2000 was prepared by Juan

E. Hernandez of Zeta Enterprise in Sacramento, California.

Petitioner sought the assistance of a return preparer because he

was unable to prepare a return himself.    Petitioner is a native

speaker of Spanish, and his ability to speak and understand

English is extremely limited.




     3
        Petitioner reported zero tax on line 26 of his Form 1040A
and was therefore ineligible for a child tax credit. See sec.
24.
                               - 4 -

     The record does not disclose whether Rita Pelayo filed an

income tax return for the taxable year 2000.4

     In the notice of deficiency, respondent determined that

petitioner’s filing status was “married filing separately” rather

than “head of household”.   Respondent also determined that

petitioner was not entitled to either (1) deductions for

dependency exemptions or (2) an earned income credit.   Respondent

also adjusted the amount of petitioner’s standard deduction to

correspond with the determined filing status.   Finally,

respondent did not make any allowance for a child tax credit.

Discussion5

     A.   Filing Status

     In order to qualify for “head of household” filing status,

an individual must satisfy several requirements.   One of those

requirements relates to the individual’s marital status.   Thus,

as relevant herein, section 2(b)(1) provides 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”.




     4
        Rita Pelayo did not sign petitioner’s Form 1040A, nor is
there any indication on such form that it is intended as a joint
return. See sec. 6013(a).
     5
       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 -

     The parties stipulated that petitioner was married to Rita

Pelayo and lived with her throughout the taxable year 2000.

Under such circumstances, petitioner does not qualify for “head

of household” filing status.       Cf. secs. 2(c), 7703(b) (regarding

certain married individuals living apart who are treated as not

married).

     In view of the foregoing, we sustain respondent’s

determination on this issue.6

     B.     Earned Income Credit

     In the case of an eligible individual, section 32(a) allows

an earned income credit against the individual's income tax

liability.    However, in the case of an individual who is married

as of the close of his taxable year, the credit is only available

if the individual files a joint return with the individual’s

spouse.   Sec. 32(d); see sec. 7703(a)(1).

     The parties stipulated that petitioner was married to Rita

Pelayo and lived with her throughout the taxable year 2000.      Cf.

sec. 7703(b).    Under such circumstances, petitioner would only

qualify for the earned income credit if he filed a joint return.




     6
        Because of the modest amount of petitioner’s income,
respondent’s adjustments related to filing status and the amount
of the standard deduction may have no tax effect. If these
adjustments do have a tax effect, then, as part of the Rule 155
computation, the parties shall consider the applicability of the
child tax credit under sec. 24.
                               - 6 -

Sec. 32(d).   Unfortunately for petitioner, he did not do so.7

     In view of the foregoing, we sustain respondent’s

determination on this issue.

     C.   Conclusion

     We are satisfied that petitioner is a conscientious taxpayer

who tried to fulfill his Federal income tax obligations by

securing the assistance of a professional tax return preparer.

Unfortunately for petitioner, his preparer gave him erroneous

advice.   Although this fact might have insulated petitioner from

liability for a penalty if respondent had determined one, a

taxpayer’s good-faith reliance on a professional tax preparer

does not insulate the taxpayer from liability for the underlying

tax itself.

     Reviewed and adopted as the report of the Small Tax Case

Division.




     7
        There is nothing in the record to suggest that, as of the
date that respondent sent the notice of deficiency, petitioner
and Rita Palayo had attempted to file a joint return for the
taxable year 2000. Inasmuch as petitioner filed a petition in
respect of such notice, he is precluded from filing a joint
return for that year. See sec. 6013(b)(2); cf. Phillips v.
Commissioner, 86 T.C. 433, 441 n.7 (1986), affd. on this issue
851 F.2d 1492 (D.C. Cir. 1988).
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     To give effect to respondent’s concession and our

disposition of the disputed issues,



                                           Decision will be entered

                                      under Rule 155.8




     8
        We expect the parties to reflect clearly in their Rule
155 computation the amount of whatever deficiency, deficiency to
be paid, or overpayment that may exist in this case. In this
regard, we note that respondent’s trial memorandum states that
“Petitioner’s earned income credit request and request for refund
of his federal tax withholding * * * were frozen prior to the
issuance of the deficiency notice”.   Thus, although a technical
deficiency may exist, see sec. 6211(a),(b)(1), (4), no part of
that deficiency may remain to be paid, and petitioner may be
entitled to a refund of all or part of the tax withheld from his
wages.
