2002 Tax Ct. Summary LEXIS 76">*76 PURSUANT TO INTERNAL REVENUE CODE SECTION 7463(b), THIS OPINION MAY NOT BE TREATED AS PRECEDENT FOR ANY OTHER CASE.
PANUTHOS, Chief Special Trial Judge: This case was heard pursuant to the provisions of
Respondent determined a deficiency of $ 2,543 in petitioner's Federal income tax for the taxable year 1999.12002 Tax Ct. Summary LEXIS 76">*77 After concessions by respondent,2 the issue for decision is whether petitioner is entitled to an earned income credit (EIC).
Petitioner resided in Alexandria, Virginia, at the time he filed his petition.
Background
During 1999, the tax year at issue, petitioner lived and worked in New Jersey. Petitioner's 9-year-old daughter, Kenesha Dudley (Kenesha), lived with her mother, Yonetta Dudley (Ms. Dudley), in Washington, D.C., until May 1999. In May 1999, Kenesha moved to Alexandria, Virginia, to live with her grandmother, Clarice Chandler (Mrs. Chandler). On weekends petitioner would travel from New Jersey to Virginia to visit Kenesha. Petitioner paid Mrs. Chandler $ 200 per week for room and board for Kenesha and for himself. Kenesha lived with petitioner in New Jersey when she was on vacation from school.
Respondent asserts that petitioner is not entitled to the claimed EIC2002 Tax Ct. Summary LEXIS 76">*78 with respect to a qualifying child because during the tax year Kenesha was living in the same household as Mrs. Chandler, whose modified adjusted gross income was greater than petitioner's. A transcript of account for the tax year 1999 reflects Mrs. Chandler's modified gross income of $ 60,327.
Discussion
The burden of proof is on petitioner.
A "qualifying child" includes a child who satisfies a relationship test2002 Tax Ct. Summary LEXIS 76">*79 to the taxpayer, has the same principal place of abode as the taxpayer for more than one-half of the taxable year, and has not attained age 19.
The taxpayer must have identified the child on his return under the identification rule of
Under
The term "eligible individual" also includes an individual without a qualifying child if the individual's2002 Tax Ct. Summary LEXIS 76">*80 principal place of abode is in the United States for more than one-half of the taxable year, the individual has attained age 25 but not age 65, and the individual is not a dependent of another for whom a deduction is allowable under
Except for temporary absences during vacation from school, Kenesha lived in her grandmother's house in Virginia as of May 1999 and for the remainder of 1999. We find that Kenesha's principal place of abode was Mrs. Chandler's house in Virginia. Although petitioner visited Kenesha in Virginia on weekends, we find that his principal place of abode was in New Jersey. Therefore, petitioner did not have the same principal place of abode as Kenesha for more than one-half of 1999.
However, petitioner satisfies the residency, age, and dependency requirements of an eligible individual under
Reviewed and adopted as the report of the Small Tax Case Division.
To reflect the foregoing,
Decision will be entered under Rule 155.
1. Petitioner was entitled to a refund of $ 2,621 in 1999; however, the deficiency resulting from respondent's denial of the claimed EIC reduced the refund to $ 309.↩
2. Respondent conceded that: Petitioner is entitled to the claimed dependency exemption deduction; the resolution of petitioner's proper filing status has no income tax consequences and, therefore, is moot; and petitioner may be entitled to an EIC based upon a modified adjusted gross income of $ 8,589 as an individual with no qualifying children.↩
3. Sec. 7491 does not apply to shift the burden of proof to respondent because petitioner has neither alleged that sec. 7491 is applicable nor established that he complied with the requirements of sec. 7491(a)(2)(A) and (B) to substantiate items, maintain required records, and fully cooperate with respondent's reasonable requests.↩