                    T.C. Summary Opinion 2005-73



                       UNITED STATES TAX COURT



                    ELPIDIO LOZOYA, Petitioner v.
            COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 8495-03S.              Filed June 6, 2005.


     Elpidio Lozoya, pro se.

     Kelli Todd, for respondent.


     HOLMES, Judge:    Elpidio Lozoya’s marriage is a stormy one,

and he has often been left alone to tend to their two children.

2001 was especially difficult for the Lozoyas, and Mr. Lozoya

filed a tax return by himself that year, claiming an earned

income tax credit (EITC) for his two children.     His right to an

EITC turns on whether and when his wife left him that year.1


     1
         The case was tried under Internal Revenue Code section
7463.    (All section citations are to the Code as in effect for
                                                     (continued...)
                                 - 2 -

                              Discussion

     Elpidio and Rosa Lozoya were legally married throughout

2001.     Mr. Lozoya was self-employed as a handyman and earned

about $10,000.     Mrs. Lozoya, an illegal alien in 2001, was a

homemaker while she lived with him and their children.     No one

disputes that during the first part of 2001, they lived together

with their two school-age children.

         Filing a joint return can be difficult when one spouse is

an illegal alien, and so not entitled to the Social Security

number ordinarily required to process a return.2    On his 2001 tax

return, Lozoya checked the box marked “single” as his filing

status.     He did not claim either of his children as a dependent,

but he did claim an EITC.     When the IRS audited his return, the

revenue agent changed Lozoya’s filing status to married-filing-

separately because he was married at the end of 2001.3    This

change then triggered a disallowance of the EITC because a

married man must file a joint return to claim it.     Sec. 32(d).


     1
      (...continued)
2001.) Because Lozoya chose small case status, this decision is
not reviewable by any other court, and this opinion should not be
cited as precedent.
     2
        The Commissioner grants individual taxpayer
identification numbers to aliens who apply for one, see generally
sec. 301.6109-1, Proced. & Admin. Regs. Mrs. Lozoya never did.
     3
       The Commissioner also imposed an addition to tax for late
filing, but has now conceded that issue.
                                - 3 -

     This case raises three issues:

           •   Did the Lozoya children qualify as dependents?

           •   What was Lozoya’s correct filing status?

           •   Did he qualify for the EITC?

     Section 152(a) defines “dependent” to include a taxpayer’s

children if he provides more than half their support during the

year.   There can be no doubt that the Lozoya children (who were

only 8 and 15 during 2001) qualify--their father was the only

source of income for the family, and they lived with him through-

out the year.

     It is a mystery why Lozoya’s return preparer did not claim

them as dependents (and thus triple the number of exemptions

Lozoya could take) on the original return.    And Lozoya himself

did not expressly raise the issue in his petition.    Nevertheless,

mindful that “[t]rials of small tax cases will be conducted as

informally as possible,” Tax Court Rule 174(b), and because

Lozoya’s correct filing status and eligibility for the credit

were squarely in issue and turn in part on whether his children

were dependents, Tax Court Rule 41(b)(1), we expressly find that

he is entitled to claim his two children as dependents.

     That his children were his dependents is important because

it affects our decision about his correct filing status.    The

Commissioner insists that Lozoya must file as married-filing-

separately because he was married and his wife did not sign a
                                - 4 -

joint return with him.    Section 7703(b), however, allows a

married man to file as if he were unmarried when he:     (a) files a

separate return, (b) pays over half the cost of maintaining his

household during the year, and (c) uses that household as his

principal place of abode together with at least one dependent

child, if (d) “during the last 6 months of the taxable year, such

individual’s spouse is not a member of such household.”     The

parties disagree only about whether the Lozoyas shared the same

household for the last 6 months of 2001.

     What does it mean to be a “member of such household?”      A

regulation tells us that a “nonpermanent failure to occupy such

household as his abode by reason of illness, education, business,

vacation, or military service shall be considered a mere

temporary absence due to special circumstances.”     Sec. 1.7703-

1(b)(5), Income Tax Regs.    And even marital strife so bad that a

husband demands that his wife leave is not sufficient if they

continue to “live under one roof.”      See Becker v. Commissioner,

T.C. Memo. 1995-177.

     The issue comes down to a judgment on the credibility of

Lozoya and his son.    Both testified, and we find both to be

honest witnesses.   Though neither remembered the precise date

that Mrs. Lozoya left the house in 2001--Mr. Lozoya testified

that she left in “June 2001” and Luis said that she left “before

school let out for summer vacation”--we find that Mrs. Lozoya was
                               - 5 -

not living under the same roof with them, nor was she absent only

temporarily “due to special circumstances.”   Although she would

visit the children occasionally, she was simply not a member of

their household during the last 6 months of the year.

     The Commissioner disbelieved Lozoya because it was only at

trial that he produced his son to testify about when his wife

left.   This doubt is understandable--most people would try to

provide what information they could to the IRS as soon as

possible to avoid a trial.   But Lozoya explained that he had

numerous phone calls with several IRS employees about at least

three different tax years.   Not all the employees seemed to know

about the information he had sent in for which years on which

contested items; and the fact that Lozoya's native language isn’t

English is probably a further reason why this case ended up being

tried with only testimonial proof on either side of this issue.

     Based on a preponderance of that evidence, we find that

Lozoya qualifies to be treated as unmarried for 2001.   This means

that he meets one requirement for filing as head of household.

Another requirement for that status is that he provide a home for

at least one child.   The record shows that he provided a home to

both his children, and they are both “qualifying children.”     Sec.

2(b)(1)(A).   Lozoya can thus claim head-of-household filing

status for 2001.

     Since Lozoya qualifies for that filing status, it follows
                              - 6 -

that he also qualifies for the EITC for his two children.    The

Commissioner points us to Diaz v. Commissioner, T.C. Memo. 2004-

145, where the taxpayer was allowed to file as head of household

but was still prohibited from taking the EITC.    Diaz, however,

could file as head of household only because his wife was a

nonresident alien at some time during the tax year.    Lozoya, in

contrast, can use that filing status because he qualifies as

unmarried under section 7703(b).

     To make the appropriate adjustments,

                                      A decision will be entered

                              under Rule 155.
