T.C. Summary Opinion 2007-11



                     UNITED STATES TAX COURT



              JORGE MALIABO BALUMBA, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 5501-06S.             Filed January 18, 2007.


     Jorge Maliabo Balumba, pro se.

     Roger W. Bracken, for respondent.



     PANUTHOS, Chief 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 year in issue, and all Rule

references are to the Tax Court Rules of Practice and Procedure.
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       Respondent determined a $4,648 deficiency in petitioner’s

2004 Federal income tax.    The issues for decision are:    (1)

Whether petitioner is entitled to deductions for dependency

exemptions; (2) whether petitioner is entitled to a child tax

credit; (3) whether petitioner qualifies as a head of household;

and (4) whether petitioner is entitled to an earned income

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 this reference.      At the time the petition

was filed, petitioner resided in Silver Spring, Maryland.

       From January through May 2004, petitioner lived in

Gaithersburg, Maryland, with his mother, his aunt, and six

siblings.    Petitioner worked during 2004, as did his mother, his

aunt, and one of his sisters.    Petitioner earned $11,015, and his

mother earned approximately $13,000.      The record does not

disclose how much petitioner’s aunt or sister earned.      The four

family members who worked each contributed toward the family’s

monthly expenses, such as food, clothing, mortgage, and utility

costs.

       On or about June 1, 2004, petitioner moved to Washington,

D.C.    Petitioner rented a room with his girlfriend, Hafiza

Olatunde, and continued to live there until sometime in 2005.
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Petitioner’s mother, aunt, and siblings remained in Gaithersburg

during this time.

     Petitioner filed his 2004 Federal income tax return as a

“head of household”.    He also claimed deductions for dependency

exemptions, child tax credits, and an earned income credit with

respect to two of his sisters, FM and MM.1     Respondent issued

petitioner a notice of deficiency in February 2006 denying the

claimed deductions and credits.    Respondent also changed

petitioner’s filing status to single.

                              Discussion

     In general, the Commissioner’s determinations set forth in a

notice of deficiency are presumed correct, and the taxpayer bears

the burden of showing that the determinations are in error.     Rule

142(a); Welch v. Helvering, 

, 115 (1933).     Deductions

and credits are a matter of legislative grace, and the taxpayer

bears the burden of proving entitlement to any deduction or

credit claimed on a return.    See INDOPCO, Inc. v. Commissioner,

(1992); Wilson v. Commissioner, T.C. Memo. 2001-139.

     Pursuant to section 7491(a), the burden of proof as to

factual matters shifts to the Commissioner under certain

circumstances.    Petitioner has neither alleged that section

7491(a) applies nor established his compliance with the

requirements of section 7491(a)(2)(A) and (B) to substantiate


     1
         The Court uses only the minor children’s initials.
                               - 4 -

items, maintain records, and cooperate fully with respondent’s

reasonable requests.   Petitioner therefore bears the burden of

proof.

I.   Deductions for Dependency Exemptions

      A taxpayer may be entitled to claim as a deduction an

exemption amount for each of his or her dependents.     Sec. 151(c).

An individual must meet the following five tests in order to

qualify as a dependent of the taxpayer:     (1) Support test; (2)

relationship or household test; (3) citizenship or residency

test; (4) gross income test; and (5) joint return test.     Secs.

151 and 152.   If the individual fails any of these tests, he or

she does not qualify as a dependent.

      For a claimed dependent to satisfy the support test a

taxpayer generally must provide more than half of the claimed

dependent’s support for the calendar year in which the taxable

year of the taxpayer begins.   Sec. 152(a).    The taxpayer must

initially demonstrate, by competent evidence, the total amount of

the support furnished by all sources for the taxable year at

issue.   Blanco v. Commissioner, 

, 514 (1971); Cotton

v. Commissioner, T.C. Memo. 2000-333.     If the total amount of

support is not established, then it is generally not possible to

conclude that the taxpayer provided more than half of the support

to the claimed dependent.   Blanco v. 

at 514-

515; Cotton v. 

.     Support includes “food,
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shelter, clothing, medical and dental care, education, and the

like.”   Sec. 1.152-1(a)(2)(i), Income Tax Regs.

     Petitioner credibly testified that he contributed money

toward his family’s expenses.   Petitioner failed, however, to

establish the total amount of support that FM and MM received in

2004 or the amount of support that he provided.    Accordingly,

petitioner has not demonstrated that he provided more than half

of FM’s or MM’s support.   See Blanco v. 

at

514-515.

     Petitioner contends that he and his mother agreed that

petitioner would be financially responsible for FM and MM.

Petitioner therefore believes he should be able to claim FM and

MM as dependents.   Although it is not entirely clear, petitioner

may be arguing that there was a multiple support agreement with

respect to FM and MM.

     Section 152(c) provides:

          SEC. 152(c). Multiple Support Agreements.--For
     purposes of subsection (a), over half of the support of
     an individual for a calendar year shall be treated as
     received from the taxpayer if—

                (1) no one person contributed over half of
           such support;

                (2) over half of such support was received
           from persons each of whom, but for the fact that
           he did not contribute over half of such support,
           would have been entitled to claim such individual
           as a dependent for a taxable year beginning in
           such calendar year;
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                (3) the taxpayer contributed over 10 percent
           of such support; and

                (4) each person described in paragraph (2)
           (other than the taxpayer) who contributed over 10
           percent of such support files a written
           declaration (in such manner and form as the
           Secretary may by regulations prescribe) that he
           will not claim such individual as a dependent for
           any taxable year beginning in such calendar year.

      Petitioner has failed to demonstrate that no one person

contributed over half of the support for FM or MM in 2004.

Furthermore, neither petitioner’s mother nor any other member of

his family filed a written declaration allowing petitioner to

claim FM or MM as a dependent.     Accordingly, we conclude there

was no multiple support agreement with respect to FM or MM.        See

sec. 152(c)(1), (4).      Petitioner therefore is not entitled to the

claimed deductions, and respondent’s determination is sustained.

II.   Child Tax Credits

      Section 24(a) provides for a “credit against the tax * * *

for the taxable year with respect to each qualifying child of the

taxpayer”.   The term “qualifying child” means any individual if

three requirements are met, one of which is that the taxpayer be

allowed a deduction under section 151 with respect to such

individual for the taxable year.     Sec. 24(c)(1).   Because we

conclude that petitioner is not entitled to a dependency

exemption deduction with respect to FM or MM, they are not
                                   - 7 -

qualifying children and petitioner is not entitled to child tax

credits.    Respondent’s determination is sustained.

III.    Head of Household

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

filing as head of household.     To qualify as a head of household

the taxpayer must, inter alia, maintain as his or her home a

household that is the principal place of abode for an individual

who qualifies as the taxpayer’s dependent under section 151.

Sec. 2(b)(1)(A)(ii); Toney v. Commissioner, T.C. Memo. 2004-165.

Because we conclude that neither FM nor MM qualifies as

petitioner’s dependent under section 151, he is not entitled to

head-of-household filing status.      Respondent’s determination is

sustained.

IV.    Earned Income Credit

       Subject to limitations, an eligible individual is allowed a

credit which is calculated as a percentage of the individual’s

earned income.    Sec. 32(a)(1).    Section 32(c)(1)(A)(i), in

pertinent part, defines an “eligible individual” as “any

individual who has a qualifying child for the taxable year”.       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 individual must have the

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

half of the taxable year.     Sec. 32(c)(3)(A)(ii).    As mentioned
                                 - 8 -

above, petitioner resided with Ms. Olatunde in Washington, D.C.,

for the last 7 months of 2004.    Accordingly, petitioner’s

residence was not FM’s or MM’s principal place of abode for more

than one-half of the taxable year.       Petitioner therefore is not

entitled to an earned income credit, and respondent’s

determination is sustained.

     Reviewed and adopted as the report of the Small Tax Case

Division.

     To reflect the foregoing,


                                         Decision will be entered for

                                 respondent.