                       T.C. Memo. 1998-345



                     UNITED STATES TAX COURT



                LUDIVINA MADRIGAL, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 12505-97.               Filed September 29, 1998.



     Ludivina Madrigal, pro se.

     T. Richard Sealy III, for respondent.


                       MEMORANDUM OPINION

     GOLDBERG, Special Trial Judge:   This case was heard pursuant

to section 7443A of the Code and Rules 180, 181, and 182 of the

Tax Court Rules of Practice and Procedure.   All section

references are to the Internal Revenue Code in effect for the

years in issue.
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     Respondent determined deficiencies in petitioner's Federal

income taxes for the 1993 and 1994 tax years in the amounts of

$1,511 and $2,243, respectively.    The 1993 and 1994 deficiency

amounts represent petitioner's earned income credit claimed on

her individual income tax returns for these years.    On the Income

Tax Examination Changes sheet attached to the notice of

deficiency mailed to petitioner for the 1993 taxable year,

respondent calculated a deficiency in the amount of $1,511.

     As the result of a typographical error, the deficiency

amount shown on the 1993 notice of deficiency was transposed to

indicate a deficiency amount of $1,151.    The amount of the

deficiency in controversy for 1993 which petitioner disputes is

$1,511 as set forth in the petition.    Respondent admits this in

the Answer.

     The issues for decision are:    (1) Whether petitioner is

entitled to claim head of household filing status for 1993 and

1994; and (2) whether petitioner is entitled to an earned income

credit for the 1993 and 1994 tax years.

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

The stipulation of facts and the attached exhibits are

incorporated herein by this reference.    At the time the petition

was filed, petitioner resided in Alice, Texas.    Neither

petitioner nor her husband, Victor Madrigal, is fluent in

English, and their testimony was given through an interpreter.
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     Petitioner was married to Victor Madrigal (Mr. Madrigal) in

Mexico in 1969.    Petitioner and Mr. Madrigal came to the United

States in 1979 and settled in Alice, Texas.    Petitioner and Mr.

Madrigal rented a house in Alice, and Mr. Madrigal began working

in construction.   Petitioner and Mr. Madrigal have six children.

     Petitioner and Mr. Madrigal bought a four-bedroom house on

Beckham Street in Alice in 1982.   In 1989, petitioner and Mr.

Madrigal experienced marital difficulties, and Mr. Madrigal left

the house on Beckham Street for a time.    Mr. Madrigal left Alice

at different times to work in Corpus Christi, Houston, and

Chicago.

     Only four of petitioner's children lived with petitioner

during the 1993 and 1994 tax years.     Petitioner worked as a home

provider in 1993 and 1994.   As a home provider, petitioner worked

with senior citizens in their homes.

     When Mr. Madrigal was working he provided support for the

children.   Additionally, petitioner received food stamps for 1993

and 1994.   Petitioner could not recall the amount of support Mr.

Madrigal provided or the amount of food stamps she received for

the years in issue.

     Petitioner permitted Mr. Madrigal to claim one of the

children, Victor, Jr., as a dependent for the 1993 tax year on

his individual income tax return because Mr. Madrigal was giving
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her some money.   Mr. Madrigal used the Beckham street address on

his 1993 and 1994 Federal income tax returns.

     Petitioner used head of household filing status on her

Federal income tax returns for the 1993 and 1994 tax years.

Respondent determined that petitioner's proper filing status for

1993 and 1994 was married filing separate because petitioner did

not satisfy the statutory requirements necessary for a married

taxpayer to file as head of household.   Respondent adjusted

petitioner's standard deduction because of the change in

petitioner's filing status.   Respondent further disallowed

petitioner's earned income credit for the 1993 and 1994 tax years

because petitioner was married and did not file a joint return.

1.   Head of Household Filing Status

     In order to file a return as head of household, a taxpayer

may not be married at the close of the taxable year.   Sec. 2(b).

However, a married taxpayer may be treated as an unmarried

taxpayer for head of household filing purposes if the taxpayer

complies with the statutory requirements of section 7703(b).

Sec. 2(c).

     Section 7703(b) provides that certain married taxpayers

living apart will not be considered as married for head of

household filing purposes if:   (1) The taxpayer files a separate

tax return; (2) the household is for more than one half of the

taxable year the principal place of abode of the taxpayer's child
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for whom the taxpayer would be entitled to claim a dependency

exemption; (3) the taxpayer pays more than half the cost of

maintaining such household for the tax year; and (4) the

taxpayer's spouse is not a member of the household during the

last 6 months of the tax year.

     Petitioner contends that she is entitled to head of

household filing status because Mr. Madrigal did not live with

her for the 1993 and 1994 tax years and because petitioner

provided more than half the cost of maintaining her household for

the years in issue.

     Both petitioner and Mr. Madrigal testified that Mr. Madrigal

did not live with petitioner for any part of the 1993 and 1994

tax years.   Mr. Madrigal produced a lease and testified that he

lived with his aunt, Emma Torres, for the years in issue and paid

his aunt $200 a month for room and board at her house on

Seabreeze Street during 1993 and 1994.   However, apart from his

testimony, Mr. Madrigal was unable to present any evidence that

he actually paid any rent to his aunt or lived in the Seabreeze

Street house.

     At times, petitioner's testimony conflicted with the

testimony of Mr. Madrigal, and Mr. Madrigal's testimony

conflicted with the information on his 1993 and 1994 Federal

income tax returns; namely, the returns stated his address as 316

Beckham Street.   While petitioner testified that Mr. Madrigal
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lived at the Seabreeze Street house, she testified that Mr.

Madrigal had difficulty paying rent of even $200 a month and was

frequently without work.

     Mr. Madrigal testified that he paid his aunt $200 every

month in cash for room and board even though he reported a yearly

income of only $1,800 on his 1994 Federal income tax return.

Further, Mr. Madrigal testified that his 1994 Federal income tax

return was inaccurate and that he earned more than $5,000 for the

1994 tax year.    Mr. Madrigal did not have receipts for the rent

he paid.

     We find the testimony in this case to be confusing at best.

Furthermore, we do not find the lease to be credible evidence

that Mr. Madrigal lived with his aunt at the house on Seabreeze

Street.    Neither petitioner nor Mr. Madrigal could remember who

prepared the lease, and both gave conflicting testimony as to

rent amounts actually paid.   Absent proof that she and Mr.

Madrigal lived apart for the last 6 months of either tax year,

petitioner is unable to show her entitlement to claim head of

household status for filing purposes.

     Additionally, petitioner has not shown that she provided

more than half the cost of maintaining her household for the 1993

and 1994 tax years as required by section 7703(b)(2).   Petitioner

received food stamps for the 1993 and 1994 tax years.   Mr.

Madrigal also provided support for the children when he was
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working.    Though petitioner testified that she did not know the

amount of monetary support provided by Mr. Madrigal, petitioner

allowed Mr. Madrigal to claim one of the children, Victor, Jr.,

as a dependent for the 1993 tax year because of the support he

was providing.

     Based on the record, we hold that petitioner was not

entitled to file as head of household for the 1993 and 1994 tax

years and that her correct filing status for the years in issue

is married filing separate.    Respondent is sustained on this

issue.

2.   Earned Income Credit

     Section 32 provides an earned income credit for certain

"eligible individuals".     Section 32(d) provides, however, that a

married individual, within the meaning of section 7703, is only

eligible for the earned income credit if a joint return is filed

for the taxable year.

     Petitioner, a married individual within the meaning of

section 7703, did not file a joint return for either of the 1993

and 1994 tax years.   Based on the record, we hold that petitioner

is not entitled to an earned income credit for the 1993 and 1994

tax year.   Respondent is sustained on this issue.

     To reflect the foregoing,

                                              Decision will be entered

                                         for respondent.
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