T.C. Summary Opinion 2005-56



                     UNITED STATES TAX COURT



               CHUKS ANTHONY MBANU, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 12132-02S.             Filed May 5, 2005.


     Chuks Anthony Mbanu, pro se.

     Thomas Yang, for respondent.



      DEAN, Special Trial Judge:    This case was heard pursuant to

the provisions of section 7463 of the Internal Revenue Code in

effect at the time that the petition was filed.   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.

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 for taxable year 2000 a deficiency in

petitioner's Federal income tax of $2,422.

     Before trial, respondent conceded that petitioner is

entitled to one dependency exemption in addition to one exemption

for himself for taxable year 2000.      The remaining issues are:

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

status; and (2) whether petitioner is entitled to the earned

income credit.

                           Background

     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.      At the time the petition

in this case was filed, petitioner resided in Chicago, Illinois.

     Throughout taxable year 2000, petitioner was legally married

to Charity Mbanu.    They are the parents of two children.    From

January through mid-June of 2000, petitioner and his wife lived

apart.   From mid-June of 2000 through the end of the year,

petitioner, his wife, and their children lived together.

     Petitioner and his wife did not file a joint income tax

return for 2000.    Petitioner timely filed an individual income

tax return for 2000 as a head of household.

     Respondent issued a notice of deficiency determining that

petitioner is not entitled to head of household filing status or
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the earned income credit for 2000 because he failed to

substantiate his claims.

                           Discussion

     Deductions are a matter of legislative grace, and taxpayers

must maintain adequate records to substantiate the amounts of any

deductions or credits claimed.    Sec. 6001; INDOPCO, Inc. v.

Commissioner, 

, 84 (1992); sec. 1.6001-1(a), Income

Tax Regs.   Taxpayers generally bear the burden of proving that

the Commissioner's determinations are incorrect.       Rule 142(a);

Welch v. Helvering, 

, 115 (1933).       The Court decides

this case without regard to the burden of proof.       Accordingly,

the Court need not decide whether section 7491(a)(1) is

applicable in this case.   See Higbee v. Commissioner, 

(2001).

1.   Head of Household Filing Status

     Section 1(b) imposes a special tax rate on an individual

filing as a head of household.    As relevant herein, section 2(b)

defines a "head of household" as an unmarried individual who

maintains as his home a household that for more than one-half of

the taxable year constitutes the principal place of abode of an

unmarried child of the individual.       Sec. 2(b)(1)(A)(i).

     Petitioner's eligibility for head of household filing status

depends on whether he is treated as unmarried.       Section 7703(a)

provides that an individual's marital status shall be determined
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at the end of the taxable year and "an individual legally

separated from his spouse under a decree of divorce or of

separate maintenance shall not be considered as married."    Sec.

7703(a)(2).   Petitioner does not meet this requirement.   Section

7703(b) provides, in pertinent part, that if

                (1) an individual who is married * * *
           and who files a separate return maintains as
           his home a household which constitutes for
           more than one-half of the taxable year the
           principal place of abode of a child * * *
           with respect to whom such individual is
           entitled to a deduction for the taxable year
           under section 151 * * *,

                (2) such individual furnishes over
           one-half of the cost of maintaining such
           household during the taxable year, and

                (3) during the last 6 months of the
           taxable year, such individual's spouse is not
           a member of such household,

     such individual shall not be considered as married.

These requirements are stated in the conjunctive, and the

requirements of each paragraph must be satisfied.

     Petitioner concedes that he was married during 2000 and that

his wife lived with him from mid-June through the end of the

year.   The Court sustains respondent's determination that

petitioner is not entitled to head of household filing status.
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2.   Earned Income Credit

     Section 32(a)(1) allows an eligible individual an earned

income credit against the individual's income tax liability.

Section 32(c)(1)(A)(i), in pertinent part, defines an "eligible

individual" as "any individual who has a qualifying child for the

taxable year".   A qualifying child includes a son or daughter of

the taxpayer who has the "same principal place of abode as the

taxpayer for more than one-half of such taxable year".       Sec.

32(c)(3)(A)(ii) and (B)(i)(I).

     Section 32(d) provides, however:       "In the case of an

individual who is married (within the meaning of section 7703),

this section shall apply only if a joint return is filed for the

taxable year under section 6013."    As 

, the Court

finds that petitioner was married during 2000, and since he and

his wife did not file a joint return, concludes that he is not

entitled to claim an earned income credit.

     Reviewed and adopted as the report of the Small Tax Case

Division.



                                         Decision will be entered

                                 under Rule 155.