                        T.C. Memo. 1999-297



                      UNITED STATES TAX COURT


                CHARLES W. NEWSOM, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent


     Docket No. 18459-98.                 Filed September 3, 1999.


     Charles W. Newsom, pro se.

     Gary L. Bloom, for respondent.


                        MEMORANDUM OPINION

     DEAN, Special Trial Judge:     Respondent determined a

deficiency in petitioner's Federal income tax of $1,709 for the

taxable year 1997.   Unless otherwise indicated, section

references are to the Internal Revenue Code in effect for the

year in issue.

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

entitled to head of household filing status; and (2) whether

petitioner is entitled to an earned income credit.
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     Some of the facts have been stipulated and are so found.

The stipulation of facts and the exhibits received into evidence

are incorporated herein by reference.    Petitioner resided in

Little Rock, Arkansas, at the time he filed his petition.

                            Background

     Petitioner and his wife, Longina Newsom, were legally

married throughout taxable year 1997 and remained married at the

time of trial.   Longina Newsom is the mother of three daughters,

Garanece Shaw, Krissa Williams, and Shanika West.    Petitioner is

not the biological father of any of Longina Newsom's children,

all of whom were born before her marriage to petitioner.

Petitioner and Longina Newsom filed separate returns for taxable

year 1997 and each claimed single filing status with one

exemption for himself or herself and one dependency exemption.

Petitioner claimed Krissa Williams as his dependent, and Longina

Newsom claimed Garanece Shaw as her dependant.

     In the notice of deficiency respondent determined that

petitioner's proper filing status was married filing separately

and did not make an adjustment with respect to petitioner's

dependency exemption for Krissa Williams.    Respondent disallowed

petitioner's claims for head of household filing status and

earned income credit.
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                              Discussion

Head of Household Filing Status

     The first issue on which we focus is whether petitioner

qualifies as a head of household.     An individual who qualifies as

a head of household has special tax rates applied to his taxable

income.    See sec. 1(b).   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".    Petitioner concedes that he was legally married

throughout the 1997 taxable year.     Therefore, petitioner does not

meet the requirements to file as a head of household under

section 2(b).

     Petitioner also is not entitled to file as a head of

household under section 2(c).     Section 2(c) provides that if a

taxpayer is a married individual living apart from his spouse, he

may be treated as an unmarried taxpayer for head of household

filing purposes if the taxpayer meets the requirements of section

7703(b).    Section 7703(b) treats an individual as not married if:

(1) The taxpayer files a separate tax return; (2) the taxpayer

maintains a household that is for more than one-half of the

taxable year the principal place of abode of the taxpayer's child

for whom the taxpayer would be entitled to claim a dependency

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

maintaining the household for the tax year; and (4) the
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taxpayer's spouse is not a member of the household during the

last 6 months of the tax year.

     Petitioner contends that he is entitled to head of household

filing status because he and Longina Newsom lived apart during

the 1997 tax year and because petitioner provided a household

which was the primary residence for Krissa Williams for more than

half of the 1997 tax year.    Petitioner, however, has failed to

establish these facts.

     The requirement of section 7703(b)(3) that a taxpayer's

spouse not be a member of his household during the last 6 months

of the taxable year is met "if such household does not constitute

such spouse's place of abode at any time during such year."     Sec.

1.7703-1(b)(5), Income Tax Regs.    There was conflicting testimony

regarding petitioner and Longina Newsom's living arrangements

during the year at issue.    Petitioner testified that he and

Longina Newsom separated sometime in 1996 and, with the exception

of a 1-month reconciliation in November of 1997, remained

separated until January 1999.    Although petitioner testified that

at no time during 1997 did he and Longina Newsom live together,

Longina Newsom testified that she and petitioner lived together

for "about one month" in 1997.

     In further conflict with petitioner's assertion that he and

Mrs. Newsom did not live together during the year at issue,

petitioner filed a complaint on March 20, 1998, instituting a
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divorce proceeding against Longina Newsom indicating that he and

Longina Newsom did not separate until approximately March 14,

1998.   On the basis of the foregoing evidence, we conclude that

petitioner has not established that he and Longina Newsom

maintained separate households throughout the last 6 months of

1997.

     While such a finding is sufficient to determine that

petitioner does not qualify as a head of household, see sec.

7703(b)(3), petitioner does not qualify on additional grounds.

Even if we were to find, on the basis of petitioner and Longina

Newsom's testimony, that Krissa Williams resided with petitioner

for more than one-half of the year at issue, petitioner failed to

establish that he provided more than one-half the cost of

maintaining his household as the principal residence of Krissa

Williams during 1997.

     The regulations provide guidance concerning the types of

expenses which constitute the cost of maintaining a household.

These expenses include "property taxes, mortgage interest, rent,

utility charges, upkeep and repairs, property insurance, and food

consumed on the premises."   Sec. 1.7703-1(b)(4), Income Tax Regs.

Petitioner offered no evidence that he incurred these types of

expenses in maintaining the households in which he alleges he and

Krissa Williams lived.
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     Petitioner testified that he and Krissa Williams lived at

9908 Independence from January until May 1997.    Petitioner

provided no evidence of his contributions toward maintaining this

household.    According to petitioner, Krissa Williams did not live

with him during the summer months, and it was not until October

1997 that Krissa Williams resumed her residence with petitioner.

Petitioner testified that in October 1997 he and Krissa Williams

moved into a home at 27 Windsor Drive, which petitioner testified

he eventually purchased under a rent-to-buy agreement.    Even if

petitioner incurred the entire cost of maintaining his household

at 27 Windsor Drive, he maintained this household for only the

last 3 months of the year.    We cannot presume that these expenses

exceeded one-half of the cost of maintaining Krissa Williams'

principal abode for the year.

     We have no doubt that petitioner contributed to the care of

Krissa Williams.    In fact respondent did not make an adjustment

with respect to petitioner's dependency exemption for Krissa

Williams.    The regulations, however, specifically provide that

the costs of maintaining a household "do not include the cost of

clothing, education, medical treatment, vacations, life

insurance, and transportation."    Sec. 1.7703-1(b)(4), Income Tax

Regs.   Without evidence of the cost of maintaining a household or

of petitioner's contributions, it is impossible to conclude that

petitioner provided more than one-half of the cost of maintaining
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his household.    Hence, for the purposes of section 7703(b) and

section 2, we will treat petitioner as married during the tax

year of 1997.

     Accordingly, we hold that petitioner is not entitled to

claim head of household filing status for taxable year 1997.

Earned Income Credit

     The remaining issue for decision is whether petitioner is

entitled to an earned income credit for the taxable year in

issue. Section 32(d) provides that an individual who is married,

within the meaning of section 7703, must file a joint return with

his spouse for the taxable year in order for section 32 to apply.

     Petitioner has conceded that he and Longina Newsom were

legally married during the year at issue.       Petitioner also does

not meet the requirements of section 7703(b), which treats

certain individuals living apart as not married.       Thus, we hold

that petitioner is not entitled to an earned income credit for

the 1997 tax year because he did not file a joint return with

Longina Newsom.

     To reflect the foregoing,

                                         Decision will be entered

                                 for respondent.
