Attorney-at-Law

THE SEARCH FOR STATUS

In Uncategorized on 01/12/2022 at 16:11

I won’t go into his multiple indocumentados. Judge Wells got paid to do that, and he did. One indocumentado is much like all the others. Wherefore, I’m blogging the first T. C. Memo. of the current year, Mohamed H. Elbasha, T.C. Memo. 2022-1, filed 1/12/21, because of his shifting status in the two (count ’em, two) years at issue.

Mo (that’s Doc Mo, emergency room physician in GA) was married in both years to the same lady, but Mrs. Doc Mo lived throughout in her “‘ome in the Soudan.” She was an NRA (that’s a Non-Resident Alien, not a pistol-packin’ Mama). Apparently they had no children in Year One, but in Year Two “(T)hey welcomed a daughter.” 2022 T. C. Memo. 1, at p. 3.

Doc Mo filed Single for Year one, and HOH in Year Two (apparently the daughter’s qualifications in support thereof never got contested). IRS never raised filing status in the SNOD, upping the ante on the trial, so IRS gets BoP at no extra charge.

Doc Mo goes one for two.

“Petitioner was married at the close of [Year One]  but contends he is entitled to the single filing status because his wife lived abroad. Simply having a spouse living apart or abroad is insufficient for a person to be considered not married. Respondent’s motion is therefore granted as to petitioner’s increased deficiency due to a change in filing status for tax year [One].” 2022 T. C. Memo. 1, at pp. 9-10.

As daughter was not welcomed until Year Two, he had no dependent that would have let him in under Section 7703(b). But as Bob Frost put it, “(A)nd that has made all the difference.”

“A person may file as a head of household only if the individual is not married at the close of the taxable year. Sec. 2(b)(1). For purposes of the head of household filing status, a taxpayer is not considered married at the close of the taxable year if that person’s spouse is a nonresident alien. Sec. 2(b)(2)(B). Petitioner testified that at the end of [Year Two] he was married but his wife, an alien, was not present in the United States.  Respondent provided no evidence to refute petitioner’s testimony. Respondent has not met his burden of proof, and the motion is therefore denied as to petitioner’s increased deficiency due to a filing status change for [Year Two].” 2022 T. C. Mewmo0. 1, at p. 10.

So we’ve seen the hidden spouse trick and the open spouse trick. Now we have the offshore spouse trick.

  1. The spouse does not need to be offshore — just considered an NRA for tax purposes. For example, a diplomat or considered one (UN and all that). Long-time occupant of a townhouse in Georgetown, or apartment in Manhattan? Doesn’t matter. Still nonresident.

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  2. Not necessarily. Substantial presence is the issue. How many days is alien spouse physically present in USA? In Elbasha, IRS couldn’t prove Mrs Mo was in the USA at all during years at issue. Opinion states she came to USA after years at issue.

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