T.C. Summary Opinion 2010-14



                      UNITED STATES TAX COURT



                   DAWNEE COCHRAN, Petitioner v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 22015-08S.            Filed February 18, 2010.



     Dawnee Cochran, pro se.

     G. Roger Markley, for respondent.



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

the provisions of section 7463 of the Internal Revenue Code in

effect when the petition was filed.   Pursuant to section 7463(b),

the decision to be entered is not reviewable by any other court,

and this opinion shall not be treated as precedent for any other

case.   Unless otherwise indicated, subsequent section references

are to the Internal Revenue Code (Code) in effect for the year in
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issue, and all Rule references are to the Tax Court Rules of

Practice and Procedure.

     For 2007 respondent determined a deficiency of $4,608 in

petitioner’s Federal income tax.    The issues for decision are

whether petitioner:   (1) Is entitled to dependency exemption

deductions for her niece and nephew; (2) is entitled to head of

household filing status; and (3) is entitled to an earned income

tax credit.

                            Background

     Some of the facts have been stipulated and are so found.

The stipulation of facts and the attached exhibits are

incorporated herein by reference.    When petitioner filed her

petition, she resided in Illinois.

     Petitioner electronically filed her Federal income tax

return for 2007.   She reported income of $13,301 on Form 1040,

U.S. Individual Income Tax Return, applied head of household tax

rates, and claimed:   (1) Two dependency exemption deductions, one

for her niece and one for her nephew; and (2) the earned income

tax credit.

     Petitioner testified that in 2007 she assisted with the

support of her niece and nephew because their mother was going

through a difficult financial situation.

     Respondent issued to petitioner a notice of deficiency:      (1)

Disallowing petitioner’s claimed dependency exemption deductions
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for her niece and nephew and the earned income credit; and (2)

changing petitioner’s filing status from head of household to

single.

                             Discussion

I.    Burden of Proof

       Generally, the Commissioner’s determinations are presumed

correct, and the taxpayer bears the burden of proving that those

determinations are erroneous.1    Rule 142(a); see INDOPCO, Inc. v.

Commissioner, 

, 84 (1992); Welch v. Helvering, 

, 115 (1933).

       Deductions and credits are a matter of legislative grace,

and the taxpayer bears the burden of proving that he or she is

entitled to any deduction or credit claimed.      Rule 142(a); Deputy

v. du Pont, 

, 493 (1940); New Colonial Ice Co. v.

Helvering, 

, 440 (1934).      Likewise, the taxpayer is

obliged to demonstrate entitlement to an advantageous filing

status, such as head of household.       Smith v. Commissioner, T.C.

Memo. 2008-229.

II.    Dependency Exemption Deduction

       A taxpayer is entitled to claim a dependency exemption

deduction under section 151(c) only if the claimed dependent is a



       1
      Petitioner has not claimed or shown that she meets the
requirements under sec. 7491(a) to shift the burden of proof to
respondent as to any factual issue relating to her liability for
tax.
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“qualifying child” or a “qualifying relative” as defined under

section 152(c) and (d).   Sec. 152(a).    A qualifying child

includes the taxpayer’s child, brother, sister, stepbrother, or

stepsister, or a descendant of any of them.     See sec. 152(c)(1)

and (2).

      In addition, section 152(c) provides that an individual is a

qualifying child of the taxpayer only if:     (1) The child had the

same principal place of abode as the taxpayer for more than one-

half of the taxable year; (2) the child meets specified age

requirements; and (3) the child did not provide over one-half of

his or her own support for the taxable year.

      Petitioner contends that the children she claimed as

dependents are her niece and nephew and that they both lived with

her from April through October 2007.     But she presented no

credible evidence that she was related to the children or that

the children lived with her during 2007.2    Therefore, the Court

finds that these children are not petitioner’s qualifying

children for 2007.3   See Irions v. Commissioner, T.C. Memo. 2009-

96.




      2
      Petitioner did not provide the Court with copies of the
children’s birth certificates, a copy of her rental agreement, or
any credible evidence that she and the children shared the same
principal place of abode.
      3
      Petitioner also failed to demonstrate that these children
were her qualifying relatives for purposes of sec. 152(d).
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II.    Head of Household Filing Status

       Section 1(b) provides a special tax rate for an individual

who qualifies as a head of household.      As relevant herein,

section 2(b)(1) provides that an unmarried individual “shall be

considered a head of a household if, and only if” that individual

“maintains as his home a household which constitutes for more

than one-half of such taxable year the principal place of abode”

of “a qualifying child of the individual (as defined in section

152(c) * * *)”, sec. 2(b)(1)(A)(i), or “any other person who is a

dependent of the taxpayer, if the taxpayer is entitled to a

deduction for the taxable year for such person under section

151”, sec. 2(b)(1)(A)(ii).

       Petitioner does not satisfy the requirements of section 2(b)

because she has not shown that the two children she claimed as

dependents for 2007 are her qualifying children, as defined in

section 152(c).    Accordingly, petitioner is not entitled to head

of household filing status for 2007.       Respondent’s determination

is sustained.

III.    Earned Income Tax Credit

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

income tax credit against that individual’s income tax liability.

The amount of the credit for a taxpayer with qualifying children

is determined according to the number of the taxpayer’s

qualifying children.    Sec. 32(b).    Under section 32(c)(3)(A), a
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qualifying child is defined the same as “a qualifying child of

the taxpayer (as defined in section 152(c) * * * ).”      She has not

shown that the children she claimed as dependents are her

qualifying children pursuant to section 152(c).      Therefore,

petitioner is not entitled to claim these children as qualifying

children for purposes of the earned income tax credit under

section 32(a)(1).

     Petitioner’s adjusted gross income for 2007 exceeded

$12,590; accordingly she is also ineligible to claim an earned

income credit under sec. 32(c)(1)(A)(ii) as an individual without

a qualifying child.   See Rev. Proc. 2006-53, sec. 3.07(1), 2006-2

C.B. 996, 1000 (announcing the specific amount for 2007).

     To reflect the foregoing,


                                         Decision will be entered

                                  for respondent.