                  T.C. Summary Opinion 2004-20



                     UNITED STATES TAX COURT



                   MAHMUD AHMED, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 16578-02S.          Filed March 3, 2004.


     Mahmud Ahmed, pro se.

     Diana P. Hinton, for respondent.



     POWELL, Special Trial Judge:   This case was heard pursuant

to the provisions of section 74631 of the Internal Revenue Code

in effect at the time the petition was filed.    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, subsequent section references
are to the Internal Revenue Code in effect for the 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 of $2,399 in petitioner’s

2001 Federal income tax.   After concessions,2 the issues are

whether petitioner is entitled to (1) head of household filing

status, and (2) an earned income credit (EIC).    Petitioner

resided in Brooklyn, New York, at the time the petition was

filed.

     The applicable facts may be summarized as follows.    During

2001, petitioner was married to Rehana Akhter (Ms. Akhter) and

resided with her and their two daughters in Brooklyn, New York.

Ms. Akhter is not a U.S. citizen.    Petitioner filed his 2001

Federal income tax return as head of household, claimed

dependency exemption deductions for his two daughters, and

claimed an EIC of $3,870 with his daughters as qualifying

children.   Respondent disallowed the dependency exemption

deductions and the EIC and changed petitioner’s filing status to

single.

Head of Household

     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”.   Sec. 2(b)(1).   A “taxpayer shall be considered as


     2
         Respondent concedes that petitioner is entitled to
dependency exemption deductions under sec. 151 with respect to
his two daughters. The parties agree that with respect to
Schedule C, Profit or Loss From Business, petitioner had
$13,949.05 of taxable income, is liable for $1,971 of self-
employment tax, and is entitled to a deduction of $986 for self-
employment taxes under sec. 164(f).
                               - 3 -

not married * * * if at any time during the taxable year his

spouse is a nonresident alien”.   Sec. 2(b)(2)(C).

     For purposes of Federal income taxation, an individual is a

nonresident alien if the individual is “neither a citizen of the

United States nor a resident of the United States”.   Sec.

7701(b)(1)(B).   To determine residency, an alien individual is a

resident of the United States if the individual meets the

“substantial presence test”.   Sec. 7701(b)(1)(A)(ii).   “[A]n

individual meets the substantial presence test * * * if--(i) such

individual was present in the United States on at least 31 days

during the calendar year, and” applying a mathematical formula,

was present during the current year and the preceding 2 years for

183 days or more.   Sec. 7701(b)(3)(A).   Ms. Akhter resided with

petitioner in the United States during all of 2001 and in the

preceding 2 years and is a resident alien.   Petitioner,

therefore, was married and does not qualify for the head of

household filing status.   Respondent’s determination is

sustained.

Earned Income Credit

     An EIC is eligible to a married individual “only if a joint

return is filed for the taxable year under section 6013.”    Sec.
                                 - 4 -

32(d).   Petitioner was a married individual who did not file a

joint return for 2001.   Therefore, petitioner is not entitled to

an EIC, and respondent’s determination is sustained.

     Reviewed and adopted as the report of the Small Tax Case

Division.

     To reflect the foregoing,

                                         Decision will be entered

                                 under Rule 155.
