                  T.C. Summary Opinion 2001-12



                      UNITED STATES TAX COURT



                RICKY R. WILLIAMS, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 18147-98S.                 Filed February 15, 2001.


     Ricky R. Williams, pro se.

     Philip G. Owens, for respondent.



     CARLUZZO, Special Trial Judge:     This case was heard pursuant

to the provisions of section 7463 of the Internal Revenue Code in

effect at the time the petition was filed.    Unless otherwise

indicated, subsequent section references are to the Internal

Revenue Code in effect for 1997.   The decision to be entered is

not reviewable by any other court, and this opinion should not be

cited as authority.
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     Respondent determined a deficiency of $2,193 in petitioner’s

1997 Federal income tax.   The issues for decision are: (1)

Whether petitioner qualifies as a head of household, and (2)

whether petitioner is entitled to an earned income tax credit.

The resolution of both issues depends upon petitioner’s marital

status, for certain purposes, as of the close of 1997.

Background

     Some of the facts have been stipulated and are so found.

At the time the petition was filed, petitioner resided in

Jeffersonville, Indiana.

     Petitioner and Sheila Eggleston (petitioner’s spouse) were

married in 1978 and remained married as of the date of trial.

They are the parents of three children, one of whom died before

the year in issue.

     In 1992, petitioner and his spouse purchased a house in

Louisville, Kentucky, that was used as the family residence (the

Louisville residence).   Starting sometime in 1992, and from time

to time thereafter, petitioner and his spouse separated due to

marital difficulties.    Typically, one or the other moved from the

Louisville residence and resided elsewhere.   Periodic separations

were followed by reconciliations when they resumed living

together at the Louisville residence.   At times, petitioner and

his spouse resided together solely for financial reasons.
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     In January 1997, they were living together at the Louisville

residence.   In April of that year, petitioner’s spouse moved into

her mother’s house, which was vacant at the time due to her

mother’s death.   Petitioner’s spouse left various items of

personal property, including clothing, jewelry, and furniture at

the Louisville residence.   Sometime around July 4, she removed

her clothing, jewelry, and other possessions from the Louisville

residence.   As of the close of 1997, she had not formally changed

her address; the address of the Louisville residence was shown on

her driver’s license and used by her as her mailing address.

During those periods when petitioner moved from the Louisville

residence, he too, maintained that address as his mailing

address.

     At least one of petitioner’s children lived at the

Louisville residence throughout 1997.   From time to time after

petitioner’s spouse moved from the Louisville residence, she

returned there to visit with or pick up her child, gather her

clothing or other personal items, or collect her mail.    She

continued to contribute towards the expenses of maintaining the

Louisville residence throughout the year.

     Petitioner’s spouse moved back to the Louisville residence

in January 1998; petitioner moved out in February of that year,

and they maintained separate residences until at least October

1999 when petitioner moved back into the Louisville residence.
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     Petitioner filed his timely 1997 Federal income tax return

as a head of household.   He claimed an earned income credit on

that return.   Petitioner filed an amended return on April 29,

1998, but because of agreements between the parties, nothing

reported on the amended return is relevant here.

     In a July 19, 1998, letter written by petitioner to

respondent’s examining agent during the course of the examination

that preceded this case, petitioner stated: “my spouse moved into

her mom’s home in July 1997".

     In the notice of deficiency, respondent determined that

petitioner did not qualify as a head of household for 1997 and

treated petitioner as a married individual who files a separate

return.   Respondent further determined that he was not entitled

to an earned income credit for that year.   According to the

explanation contained in the notice of deficiency, both

determinations were made because petitioner “did not establish

that * * * [he met] the qualifications of certain married

individuals living apart”.

Discussion

     Subject to a variety of conditions, requirements and

limitations that need not be discussed, petitioner qualifies as a

head of household and is entitled to an earned income credit for

1997 only if he is considered as not married as of the close of

that year.   See secs. 2(b)(1), 32(d).
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     Petitioner and his spouse were neither divorced nor legally

separated as of the close of 1997.      However, for purposes of the

issues here in dispute, an individual will not be considered as

married as of the close of a taxable year, if “during the last 6

months of the taxable year, such individual’s spouse is not a

member of * * * [the individual’s] household”.     Sec. 7703(b)(3);

see secs. 2(c), 32(d).

     During 1997, the situs of petitioner’s household was the

Louisville residence.    The parties disagree as to how long

petitioner’s spouse was a member of petitioner’s household during

that year.   Petitioner claims that his spouse was a member of his

household only until April when she moved from the Louisville

residence to her deceased mother’s house; respondent takes the

position that the move occurred in July and that she was a member

of petitioner’s household up until that time.     Obviously, if

petitioner’s version is correct then he satisfies the 6-month

requirement of section 7703(b)(3); if respondent’s version is

correct then he does not.    See Becker v. Commissioner, T.C. Memo.

1995-177.

     The determination of petitioner’s marital status under

section 7703(b)(3) is a question of fact.     See Sharer v.

Commissioner, T.C. Memo. 1994-453.      Petitioner’s position is

supported by his testimony and the testimony of his wife.      From

their demeanor and behavior at trial, the Court concludes that
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their relationship at that time was less than cordial.

Nevertheless, both testified that she moved from the Louisville

residence in April 1997.   Both testified that after moving in

April, she returned to the Louisville residence from time to time

to retrieve personal items stored there and to visit with her

son, and both testified that in early July 1997 she removed her

personal property from the Louisville residence.

     Respondent disputes petitioner’s claim that his spouse moved

from the Louisville residence in April.   Respondent points to the

petition, filed November 16, 1998, in which petitioner alleges

that his spouse “moved * * * in July 1997.”   Respondent further

relies upon petitioner’s July 1998 letter to the examining agent

in which petitioner states “my spouse moved into her mom’s home

in July 1997".   The line of questions put to petitioner during

his cross-examination strongly suggests that, as far as

respondent is concerned, petitioner’s claim that his wife moved

in April was concocted after petitioner realized that a

separation that began in July 1997 would be too late to allow him

to be considered as not married under section 7703(b) as of the

close of that year.

     Respondent’s suggestion is well taken, but not persuasive.

Given petitioner’s plausible explanation of the references to

July 1997, we are inclined to accept his version of the relevant

events, as corroborated by his spouse, and find that she moved
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from the Louisville residence during April 1997.      We further find

that petitioner’s spouse was not a member of his household during

the remainder of that year.    That being so, in accordance with

section 7703(b)(3), petitioner is not considered as married,

within the meaning of sections 2(b)(1) and 32(d) as of the close

of 1997.    He therefore qualifies as a head of household and for

the earned income credit here in dispute for that year.

     Reviewed and adopted as the report of the Small Tax Case

Division.

     Based on the foregoing,

                                             Decision will be

                                        entered for petitioner.
