T.C. Summary Opinion 2008-31



                      UNITED STATES TAX COURT



               JOSEPH LEE MARSHALL, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 19428-06S.               Filed March 26, 2008.



     Joseph Lee Marshall, pro se.

     Richard F. Stein, for respondent.



     GOLDBERG, 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.    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 in effect for
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the year in issue, and all Rule references are to the Tax Court

Rules of Practice and Procedure.

     Respondent determined a deficiency of $6,063 in petitioner’s

2005 Federal income tax.    The issues for decision are:   (1)

Whether petitioner is entitled to dependency exemption deductions

for two children; (2) whether petitioner is entitled to a child

tax credit; (3) whether petitioner qualifies for head of

household filing status; 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 Baltimore, Maryland.

     From November 2004 through July 2005, petitioner lived in a

row house in Baltimore, Maryland, with his mother Ernestine

Marshall (Ms. Marshall), his girlfriend Eunice Briscoe (Ms.

Briscoe), and Ms. Briscoe’s two minor children, FA and AA.1

Petitioner is not related to FA or AA by blood or marriage and

had not adopted FA or AA.     FA and AA’s biological father did not

provide any support for the children.      The row house was owned by

Ms. Marshall.    Neither petitioner nor Ms. Briscoe paid rent while

they lived in Ms. Marshall’s home; however, petitioner and Ms.


     1
         The Court uses initials when referring to minor children.
                                - 3 -

Briscoe both contributed funds for food and utility costs.

Petitioner paid Ms. Marshall approximately $250 to $300 a month

for “room and board” while residing in her home.

     In August 2005, petitioner, Ms. Briscoe, FA, and AA moved

into an apartment in Baltimore, Maryland.    Petitioner lived in

the apartment with Ms. Briscoe, FA, and AA through the end of

2005.    The rent for the apartment was $675 a month.   Initially,

petitioner and Ms. Briscoe each paid approximately one-half the

rent.    However, from October through December 2005, petitioner

paid all of the rent.    Additionally, petitioner paid for

utilities amounting to approximately $110 to $170 per month.

     In 2005, petitioner received $21,040 in wages from his work

as a fork lift operator.    Petitioner’s mother was retired and

receiving Social Security benefits.     Ms. Briscoe was employed at

Popeye’s Chicken and Biscuits Restaurant until June 2005,2 when

she began working at Sinai Hospital.    Ms. Briscoe earned $600-

$700 biweekly while employed at Sinai Hospital.    Ms. Briscoe

ended her employment at the hospital in September 2005.3

     Petitioner timely filed his 2005 Federal income tax return

as a head of household.    He also claimed dependency exemption


     2
       The record does not disclose how much Ms. Briscoe earned
while employed at Popeye’s.
     3
       According to petitioner, Ms. Briscoe also received State
assistance; however, it is not known what type of assistance she
received nor the amount thereof.
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deductions for the two children, child tax credits, and an earned

income credit with respect to FA and AA.     Petitioner listed the

two children as his son and daughter on his 2005 Federal income

tax return.

     Respondent issued petitioner a notice of deficiency in July

2006, denying the claimed deductions and credits and changing

petitioner’s filing status to single.      Petitioner filed a timely

petition for redetermination.

                              Discussion

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

notice of deficiency is presumed correct, and the taxpayer bears

the burden of showing that the determination is 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.     INDOPCO, Inc. v. Commissioner, 

, 84 (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

items, maintain records, and cooperate fully with respondent’s
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reasonable requests.    Petitioner therefore bears the burden of

proof.

A.   Dependency Exemption Deductions

       A taxpayer may be entitled to a dependency exemption

deduction for each of his or her dependents.      Sec. 151(a), (c).

However, a taxpayer is entitled to claim a dependency exemption

deduction only if the claimed dependent is a “qualifying child”

or a “qualifying relative” under section 152(c) or (d).      Sec.

152(a).

       Under section 152(c)(1)(A), a qualifying child is a child

who bears a relationship to the taxpayer described in section

152(c)(2).    That relationship, for purposes of this case, exists

if the claimed dependent is either a child of the taxpayer, a

brother, sister, stepbrother, stepsister, or a descendant of any

such relative.    Section 152(f)(1) expands the definition of

“child” to include an individual who was legally adopted by or is

an eligible foster child of the taxpayer.      Sec. 152(f)(1)(A)(ii),

(B).    Petitioner has not adopted either child, nor is he related

to FA or AA by blood or marriage.      Neither FA or AA was placed

with petitioner by an authorized placement agency or a court

order.    Sec. 152(f)(1)(B) and (C).    Thus, petitioner has failed

to establish that either FA or AA is a qualifying child as to

petitioner.
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     Section 152(d)(1) defines a qualifying relative as an

individual:   (A) Who bears a relationship to the taxpayer as

described in section 152(d)(2); (B) whose gross income for the

year is less than the exemption amount defined in section 151(d);

(C) who receives over half of his or her support from the

taxpayer for the taxable year at issue; and (D) who is not a

qualifying child of the taxpayer or of any other taxpayer for the

taxable year.    Section 152(d)(2) lists eight types of qualifying

relationships.   The first seven involve situations where an

individual is related to the taxpayer by blood or marriage.      Sec.

152(d)(2)(A) through (G).    As stated above, a legally adopted

individual is included in the definition of “child” for purposes

of this section.    Sec. 152(f)(1)(B).    As previously discussed, FA

and AA were not related to petitioner by blood or marriage, nor

were they adopted by petitioner.    Thus, section 152(d)(2)(A)

through (G) does not apply.

     Section 152(d)(2)(H) provides the eighth qualifying

relationship.    An individual may be considered a relative under

section 152(d)(2) even though not related to the taxpayer in the

traditional sense if that person:    (1) Is not the taxpayer’s

spouse; (2) has the same principal place of abode as the

taxpayer; and (3) is a member of the taxpayer’s household during

the taxable year.    Sec. 152(d)(2)(H).   In order for an individual

to be considered a member of a taxpayer’s household, the taxpayer
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must maintain the household, and both the taxpayer and the

individual must occupy the household for the taxable year.     Sec.

1.152-1(b), Income Tax Regs.   A taxpayer maintains a household

when he pays more than half of the expenses for the household.

Rev. Rul. 64-41, 1964-1 C.B. 84.    FA and AA had the same

principal place of abode as petitioner, who was unmarried.

Further, petitioner, FA, and AA occupied the household for 2005.

     The record does not provide us with sufficient evidence of

the total available sources of support for the children or that

petitioner paid more than half of the expenses for the household.

Thus, FA and AA are not considered related to petitioner for

purposes of section 152(d)(1)(A).

      Even if we concluded that FA and AA were related to

petitioner within the meaning of section 152(d)(2)(H), section

152(d)(1)(C) requires that petitioner also provide over half of

the total support for the children for the taxable year.     In

order to meet this burden of support, petitioner must establish,

by competent evidence, the total amount of support furnished for

the taxable year at issue.   See Blanco v. Commissioner, 

, 514-515 (1971); Cotton v. Commissioner, T.C. Memo. 2000-333.

Support includes “food, shelter, clothing, medical and dental

care, education, and the like.”    Sec. 1.152-1(a)(2)(i), Income

Tax Regs.
                               - 8 -

      As previously indicated, petitioner offered little evidence

as to the total sources of support or his share of support for FA

and AA.   Both petitioner and Ms. Briscoe helped pay for food and

utilities when they lived with petitioner’s mother, but neither

paid rent.   While petitioner may have paid for room and board, we

have little information as to the total expenditures to support

the children during the period January to August 2005.   After

petitioner moved with Ms. Briscoe and the children in August of

2005, petitioner paid one-half the rent for a period of time.     At

some point during or after September 2005, petitioner paid the

entire rent.   There is still insufficient evidence in this record

to establish the total cost of the children’s support during this

period, and thus petitioner failed to establish that he provided

more than half of the children’s support for 2005.   Petitioner

has failed to prove that either FA or AA is a qualifying

relative.

      Neither FA nor AA may be considered a qualifying child or a

qualifying relative; therefore, neither child may be considered

petitioner’s dependent.   Petitioner is not entitled to a

dependency exemption deduction for FA or AA.   Respondent’s

determination on this issue is sustained.

B.   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
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taxpayer”.   Section 24(c)(1) provides that, for purposes of

section 24, “qualifying child” means an individual under age 17

who is a qualifying child of the taxpayer as defined in section

152(c).   As discussed above, petitioner has not shown that either

FA or AA is a qualifying child of petitioner under section

152(c).   Therefore, he has not established that either child is a

qualifying child for purposes of section 24.

      Petitioner, thus, is not entitled to a child tax credit for

FA or AA.    Respondent’s determination on this issue is sustained.

C.   Head of Household Filing Status

      Section 1(b) grants a special lower income tax rate to a

taxpayer who files as head of household.   As relevant to this

case, to qualify as a head of household the taxpayer must

maintain as his or her home a household that is the principal

place of abode for more than half of the taxable year of 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.   Section 151(c) allows an exemption for each

individual who is a dependent of the taxpayer, as defined in

section 152(a), for the taxable year in question.   Further,

section 152(a)(1) and (2) defines a dependent as a qualifying

child or a qualifying relative.

      Neither FA nor AA was a qualifying child or a qualifying

relative of petitioner, as 

.    Therefore, the
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children are not dependents for purposes of section 151(c).

Because petitioner had no dependents as required under section

151, he is not entitled to head of household filing status for

2005.     Respondent’s determination on this issue is sustained.

D.   Earned Income Credit

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

case of an eligible individual.     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 a child of the taxpayer as defined in section

152(c).     Sec. 32(c)(3).   As stated above, neither FA nor AA was

petitioner’s qualifying child for 2005.       Thus, petitioner is not

entitled to an earned income credit.       Respondent’s determination

on this issue is sustained.

        To reflect the foregoing,


                                              Decision will be entered

                                          for respondent.