T.C. Summary Opinion 2001-119



                     UNITED STATES TAX COURT



                DWAYNE LEE RABOLD, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 4135-00S.                    Filed August 1, 2001.



     Dwayne Lee Rabold, pro se.

     Melissa J. Hedtke, for respondent.



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

the provisions of section 7463 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.   Unless otherwise indicated,

subsequent section references are to the Internal Revenue Code in

effect for the years in issue.
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     Respondent determined deficiencies of $2,210 and $2,271 in

petitioner's Federal income taxes for the years 1997 and 1998,

respectively.   This Court must decide whether petitioner was

entitled to file as head-of-household in 1997 and 1998, and

whether petitioner was entitled to earned income credits with

respect to his daughter, Maddison Rabold, in 1997 and 1998.

     Some of the facts in this case have been stipulated and are

so found.   Petitioner resided in Duluth, Minnesota, at the time

he filed his petition.

     Petitioner has two children, Maddison Rabold (Maddison),

born September 6, 1994, and Alaisa Mae Rabold, born June 4, 1992.

The children's mother is Kristina L. Strom (Kristina).

Petitioner and Kristina divorced on March 18, 1997.   Physical

custody of the children was awarded to Kristina.   Petitioner was

awarded the right of reasonable and liberal visitation.    Kristina

was also awarded possession of the homestead at 7 North 56th

Avenue West (56th Avenue home).

     During 1997 and 1998, Kristina resided at the 56th Avenue

home.   The children's address was the 56th Avenue home.

Petitioner resided with roommates in various apartments in Duluth

during 1997 and 1998.

     Petitioner's divorce decree provides that petitioner is

entitled to claim Maddison as a dependent for State and Federal

income tax purposes.    Petitioner construed this to mean that he
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could claim her for all tax purposes.   In 1997 and 1998,

petitioner claimed head-of-household filing status and earned

income credits based on one qualifying child, Maddison.     Kristina

also claimed Maddison for purposes of the earned income credit in

1997.

     Respondent determined that in 1997 and 1998 petitioner's

filing status was single rather than head-of-household and that

petitioner was not entitled to the earned income credit.

     Section 2(b) defines head-of-household as an individual

taxpayer who is unmarried at the close of his taxable year and

who maintains as his home a household that constitutes the

principal place of abode for more than one-half of the taxable

year of a daughter of the taxpayer who resides there as a member

of that household.   An individual taxpayer is considered as

maintaining a household only if he furnishes more than one-half

of the cost of maintaining that household.   Sec. 2(b)(1).    "The

expenses of maintaining a household include property taxes,

mortgage interest, rent, utility charges, upkeep and repairs,

property insurance, and food consumed on the premises."     Sec.

1.2-2(d), Income Tax Regs.

     Section 32(a) provides for an earned income credit in the

case of an eligible individual.   Section 32(c)(1)(A), in

pertinent part, defines an "eligible individual" as an individual

who has a qualifying child for the taxable year.   Sec.
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32(c)(1)(A)(i).    A qualifying child is one who satisfies a

relationship test, a residency test, and an age test.    Sec.

32(c)(3).    To satisfy the residency test, the qualifying child

must have the same principal place of abode as the taxpayer for

more than one-half of the taxable year in which the credit is

claimed.    Sec. 32(c)(3)(A)(ii).

     Petitioner testified that he would have "the kids for four

or five days at a time, a week at a time, vacations, holidays,

weekends."    He also testified that he paid for at least half of

their expenses.    We believe that petitioner was actively involved

in the parenting of his children and that he was very devoted to

them.

     However, petitioner did not have any evidence which

documented the time he spent with his children.    A log kept by

Kristina establishes that petitioner usually would take the girls

on some of the weekends and on some vacations.    Due to various

circumstances, petitioner did not take the girls every single

weekend.    Looking at all the evidence in the light most favorable

to petitioner, it appears that petitioner's children often stayed

with him, but we find on this record that they resided with

Kristina for more than 50 percent of the year.

     Petitioner expressed consternation over the provision in the

divorce decree that provided him with the right to claim Maddison

as a dependent.    The divorce decree allows petitioner the right
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to claim a dependency exemption deduction for Maddison under

section 151(c) in accordance with section 152(e)(2).   It does not

provide petitioner with the right to claim head-of-household

filing status and the earned income credit.   In order to claim

head-of-household filing status and the earned income credit,

petitioner must satisfy all of the statutory requirements under

sections 2(b) and 32, respectively.    We note that respondent did

not disallow petitioner's claimed dependency exemption deduction,

nor is petitioner being penalized for his misunderstanding

inasmuch as respondent did not determine any penalties.

     Petitioner filed in the manner he did based on his

understanding of the divorce decree provision allowing him to

claim Maddison as his dependent.   Nevertheless, both section 2(b)

and section 32 require that petitioner's household be Maddison's

principal place of abode for more than one-half of the taxable

year.   Although Maddison resided with him for part of each year,

this does not satisfy the requirement that they had the same

principal place of abode for more than one-half of each taxable

year.   Accordingly, we sustain respondent's determination.

     To the extent that we have not addressed any of the parties'
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arguments, we have considered them and conclude they are without

merit.

     Reviewed and adopted as the report of the Small Tax Case

Division.



                                      Decision will be entered

                              for respondent.