T.C. Summary Opinion 2006-143



                       UNITED STATES TAX COURT



                 CURTIS D. CUSTIS, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 5725-05S.             Filed September 13, 2006.



     Curtis D. Custis, pro se.

     Ronald S. Collins, Jr., for respondent.



     RUWE, Judge:   This case was heard pursuant to section 74631

in effect when 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.




     1
       Unless otherwise indicated, section references are to the
Internal Revenue Code in effect for the year in issue. Rule
references are to the Tax Court Rules of Practice and Procedure.
                                - 2 -

     Respondent determined a deficiency of $4,788 in petitioner’s

Federal income tax for 2003.    The issues for decision are:     (1)

Whether petitioner is entitled to two dependency exemptions; (2)

whether petitioner is entitled to head of household filing

status; (3) whether petitioner is entitled to an earned income

tax credit; and (4) whether petitioner is entitled to an

additional child tax credit.

                             Background

     Some facts have been stipulated and are so found.    The

stipulation of facts and the attached exhibits are incorporated

by this reference.    When the petition was filed, petitioner

resided in Glassboro, New Jersey.

     Respondent sent a notice of deficiency to petitioner setting

forth a deficiency of $4,788 in income tax for 2003.    In the

notice of deficiency, respondent changed petitioner’s filing

status to single and disallowed petitioner’s two dependency

exemptions for petitioner’s son, IC,2 and niece, AC, the earned

income tax credit, and the additional child tax credit.

     Petitioner and IC’s mother did not live together during

2003.    IC lived with his mother during most of the year.     IC’s

mother did not claim him as a dependent on her 2003 tax return.

Petitioner and IC’s mother orally agreed to let petitioner claim

their son as a dependent on his return in 2003, but IC’s mother


     2
         The Court uses only the initials of minor children.
                                 - 3 -

did not sign a written declaration allowing petitioner to take a

dependency exemption deduction for IC.       During 2003, petitioner

took care of his son on weekends, not very often on weekdays, and

during the summer.     Petitioner provided some financial support

for IC but did not produce canceled checks, credit card

statements, receipts, bills, or other records relating to IC’s

support during 2003.

     During 2003, petitioner also helped care for his niece, AC,

whose father is petitioner’s brother.       AC resided with petitioner

for less than half the time in 2003.       AC resided with Alvenia

Brown, her mother.   Petitioner provided clothes, “sneaks”, and

food for AC in 2003.    Alvenia Brown received financial assistance

with regard to AC from petitioner, AC’s father (petitioner’s

brother), and AC’s cousin, Michael Green, in 2003.       Petitioner

produced no testimony or documentation to substantiate amounts

expended for AC’s support for 2003.

     During 2003, both IC’s mother and AC’s mother provided

financial support for IC and AC, respectively.

                              Discussion

     As a general rule, the Commissioner’s determinations set

forth in a notice of deficiency are presumed correct, and the

taxpayer bears the burden of proving that these determinations

are in error.   Rule 142(a); Welch v. Helvering, 

, 115

(1933).   Pursuant to section 7491(a), the burden of proof as to
                                - 4 -

factual issues may shift to the Commissioner where the taxpayer

introduces credible evidence and complies with substantiation

requirements, maintains records, and cooperates fully with

reasonable requests for witnesses, documents, and other

information.    Petitioner has not met the requirements of section

7491(a) because he has not met the substantiation requirements or

introduced credible evidence to support the deductions and

credits at issue.

1.   Dependency Exemptions

     Section 151(c) allows a taxpayer to deduct an annual

exemption amount for each dependent of the taxpayer.   As applied

in this context, the definition of a “dependent” under section

152(a) includes a son3 or the daughter of a brother4 over half of

whose support was received from the taxpayer.   “[W]here there is

no evidence as to the total amount expended for support of the

child during the taxable year and no evidence from which it can

reasonably be inferred, it is not possible to conclude that the

taxpayer has contributed more than one-half.”    Stafford v.

Commissioner, 

, 518 (1966).    If a child receives over

half of his support during the calendar year from his parents,

who live apart at all times during the last 6 months of the

calendar year, and such child is in the custody of one or both of


     3
         Sec. 152(a)(1).
     4
         Sec. 152(a)(6).
                                - 5 -

his parents for more than one-half of the calendar year, such

child shall be treated, for purposes of section 152(a), as

receiving over half of his support during the calendar year from

the parent having custody for a greater portion of the calendar

year (custodial parent).   Sec. 152(e)(1).   A child of parents

described in section 152(e)(1) will be treated as having received

over half of his support during a calendar year from the

noncustodial parent if the custodial parent signs a written

declaration that such custodial parent will not claim the child

as a dependent for any taxable year beginning in such calendar

year, and the noncustodial parent attaches the written

declaration to the noncustodial parent’s return for the taxable

year beginning during such calendar year.    Sec. 152(e)(2).

Section 152(e) applies to children of parents who were never

married.   King v. Commissioner, 

, 251 (2003).

      Petitioner has failed to provide any documentation

indicating the total amount expended to support either his son or

his niece.    The record indicates that IC spent weekends and some

of the summertime with petitioner but spent most weekdays with

his mother, and that IC received support from both his mother and

petitioner.   IC’s mother did not sign a written declaration

allowing petitioner to take a dependency exemption deduction for

IC.   Petitioner stipulated that AC did not live with him for more

than half of 2003, and Alvenia Brown had financial assistance
                                - 6 -

with regard to AC from sources other than petitioner.     No

documentation concerning the support of either petitioner’s son

or niece was provided.

     Petitioner failed to establish that he provided more than

one-half of the total support for either IC or AC.      Additionally,

IC’s mother, and not petitioner, is IC’s custodial parent and did

not sign a written declaration allowing petitioner to take

dependency exemption deduction.   For the foregoing reasons,

petitioner has not satisfied the burden of proof with regard to

the claimed dependency exemptions.      Respondent’s determinations

disallowing the dependency exemptions are sustained.

2.   Head of Household Status

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

individual filing as head of household.     As applied in this

context, section 2(b) defines “head of household” as an unmarried

individual who maintains as his home a household which

constitutes for more than one-half of the taxable year the

principal place of abode of a son, 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)(i) and (ii).

     Because petitioner did not maintain a household which was

for more than half the year IC’s principal place of abode and

because petitioner is not entitled to the dependency exemption
                                 - 7 -

deduction for AC pursuant to section 151, it follows that

petitioner is not entitled to head of household filing status.

Thus, respondent’s adjustment to petitioner’s filing status is

sustained.

3.   Earned Income Tax Credit

     Petitioner claimed an earned income credit on the basis that

he had two qualifying children.     Subject to certain limitations,

section 32(a) provides for an earned income credit for an

eligible individual.    Section 32(c)(1)(A)(i) defines an “eligible

individual” as “any individual who has a qualifying child for the

taxable year”.5    In this context, a qualifying child is one who

satisfies a relationship test, a residency test, an age test, and

an identification requirement.    See 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.    See sec.

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

     Because petitioner did not establish that either his son or

his niece had the same principal place of abode for more than

one-half of the taxable year in 2003, it follows that petitioner



     5
       Sec. 32(c)(1)(A)(ii) provides that a taxpayer can also be
an “eligible individual” without a qualifying child. Petitioner
does not meet the requirements for a credit as an eligible
individual under sec. 32(c)(1)(A)(ii) because his income exceeded
the completed phaseout amount prescribed by sec. 32(b) and Rev.
Proc. 2002-70, sec. 3.06, 2002-2 C.B. 845, 848, for the year
2003.
                                   - 8 -

is not entitled to any portion of the earned income tax credit.

Respondent’s determination disallowing petitioner’s earned income

tax credit is sustained.

4.     Additional Child Tax Credit

       The child tax credit is a nonrefundable personal credit.

Section 24(a) authorizes a child tax credit with respect to each

“qualifying child” of the taxpayer.         In this context, a

“qualifying child” means an individual with respect to whom the

taxpayer is allowed a deduction under section 151, who has not

attained the age of 17 as of the close of the taxable year, and

who bears a relationship to the taxpayer as prescribed in section

32(c)(3)(B).    Sec. 24(c)(1).   If the child tax credit exceeds the

taxpayer’s Federal income tax liability for the taxable year, a

portion of the child tax credit may be refundable as an

“additional child tax credit” under section 24(d)(1).

       We have already held that petitioner is not allowed a

deduction with respect to AC and IC as dependents under section

151.    Because IC and AC are not qualifying children, petitioner

does not qualify for the child tax credit or the additional child

tax credit.

       To reflect the foregoing,

                                                Decision will be entered

                                           for respondent.