T.C. Summary Opinion 2009-132



                     UNITED STATES TAX COURT



               DEBORAH A. HARDAWAY, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 14634-07S.             Filed August 31, 2009



     Deborah A. Hardaway, pro se.

     Terra-Lynn Zentara, for respondent.



     CARLUZZO, Special Trial Judge:   This case was heard

pursuant to the provisions of section 7463.1   Pursuant to section

7463(b), the decision to be entered is not reviewable by any




     1
      Unless otherwise indicated, section references are to the
Internal Revenue Code of 1986 (Code), as amended, in effect for
the relevant period. Rule references are to the Tax Court Rules
of Practice and Procedure.
                                - 2 -

other court, and this opinion shall not be cited as precedent for

any other case.

     Respondent determined deficiencies of $2,713 and $3,834,

respectively, in petitioner’s 2004 and 2005 Federal income taxes.

The issues for decision for each year are:    (1) Whether

petitioner qualifies as a head of household; (2) whether

petitioner is entitled to a dependency exemption deduction; and

(3) whether petitioner is entitled to an earned income credit,

and, if so, in what amount.    For 2005 the parties also dispute

whether petitioner is entitled to an additional child tax credit.

                              Background

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

Petitioner was not married during or as of the close of either

year in issue.    At the time the petition was filed, she resided

in Florida.

     Petitioner and Daryl Smith (Mr. Smith) are the parents of a

daughter, born in 1992 (petitioner’s daughter).    Petitioner and

Mr. Smith have never been married to each other; they lived apart

at all times relevant.   Mr. Smith had legal custody of

petitioner’s daughter during each year in issue.    Petitioner

enjoyed and exercised visitation rights with her daughter during

weekends and summer school recesses, but her daughter lived with

Mr. Smith for the greater portion of each year in issue.
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     Petitioner was employed as a substitute teacher during the

years in issue, and her wages from that employment ($9,031 for

2004 and $14,894 for 2005) are reported on her timely filed

Federal income tax return for each of those years.     No other

income or source of income is shown on either return.     For each

year she filed as a head of household, claimed a dependency

exemption deduction for her daughter, and claimed an earned

income credit computed as though her daughter was a qualifying

child for purposes of that credit.     For 2005 she treated her

daughter as a qualifying child for purposes of the additional

child tax credit claimed for that year.

     Mr. Smith also claimed a dependency exemption deduction for

petitioner’s daughter on his 2004 and 2005 Federal income tax

returns.   He did not provide petitioner with a written

declaration indicating that he would not claim petitioner’s

daughter as a dependent for either of those years.2

Consequently, no such declaration is attached to petitioner’s

return for either year in issue.

     For each year respondent changed petitioner’s filing status

from head of household to single and made the appropriate




     2
      Such declarations can be made on a Form 8332, Release of
Claim to Exemption for Child of Divorced or Separated Parents, or
its equivalent. See sec. 1.152-4T(a), Q&A-3, Temporary Income
Tax Regs., 49 Fed. Reg. 34459 (Aug. 31, 1984).
                              - 4 -

adjustment to the standard deduction claimed on each return.       For

each year respondent also disallowed:   (1) The dependency

exemption deduction claimed for petitioner’s daughter; and (2)

the earned income credit claimed on petitioner’s return.      In

addition, for 2005 respondent disallowed the additional child tax

credit petitioner claimed on her return for that year.

                           Discussion

     Respondent’s determinations, having been made in a notice of

deficiency, are presumed correct, and petitioner bears the burden

of proving such determinations to be erroneous.3   See Rule

142(a); Welch v. Helvering, 

, 115 (1933).    The issues

in this case are resolved by the application of various Code

sections that changed between 2004 and 2005.   See the Working

Families Tax Relief Act of 2004, Pub. L. 108-311, 118 Stat. 1166.

The changes invite a year-by-year analysis, but the underlying

facts for each year relax any such requirement.    Instead, we

summarily identify the changes from year to year and dispense

with a detailed discussion of those changes that would have no

consequence to the outcome of any issue here under consideration.




     3
      Nothing in the record suggests that sec. 7491(a) is
applicable to shift the burden of proof on any issue to
respondent.
                               - 5 -

A. Head-of-Household Filing Status

     Among other tax advantages and as relevant here, a taxpayer

who qualifies as a head of household is entitled to a greater

standard deduction than a taxpayer whose filing status is single.

See sec. 63(c).   For each year respondent changed petitioner’s

filing status from head of household to single and reduced the

standard deduction accordingly.

     The definition of a head of household is contained in

section 2(b).   As indicated, that definition changed between 2004

and 2005, but it remains that to qualify as a head of household

the taxpayer must maintain, as his or her “home a household which

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

principal place of abode, as a member of such household, of”:

(1) For tax years ending before January 1, 2005, a daughter

(among other individuals); or (2) for tax years beginning after

December 31, 2004, a qualifying child (as defined in section

152(c)) or any other person for whom the taxpayer is entitled to

a dependency exemption deduction.    Because petitioner’s home was

not her daughter’s principal place of abode for more than one-

half of either year in issue, petitioner does not qualify as a

head of household for either of those years.   Respondent’s

adjustments resulting from the change of petitioner’s filing

status from head of household to single are sustained.
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B. Dependency Exemption Deductions

     In general, a taxpayer is entitled to a dependency exemption

deduction for each of the taxpayer’s dependents.    See secs. 151

and 152.    While the provisions of each of those sections differ

significantly from the version in effect for 2004 to the version

in effect for 2005, under the circumstances of this case the

applicable provisions operate in the same manner from one year to

the next.   Because petitioner and Mr. Smith did not live together

for any period during the last 6 months of either year in issue,

section 152(e), as in effect for each year, applies.    Although

section 152(e) itself differs from one year to the next, the

differences are not meaningful here.    Suffice it to note that,

with respect to a child’s parents who did not live together

during the last 6 months of either 2004 or 2005, and subject to

certain conditions and exceptions, in general section 152(e)

operates to allow the otherwise allowable dependency exemption

deduction for the child for those years to be claimed by the

child’s custodial parent.

     For each year Mr. Smith, rather than petitioner, was the

custodial parent of petitioner’s daughter.    Furthermore, he did

not provide petitioner with a Form 8332 for either of those

years.   Consequently, no such form, or its equivalent, is

attached to petitioner’s Federal income tax return for either of

those years.   That being so, petitioner’s daughter:   (1) Is
                                 - 7 -

treated as having received more than one-half of her support from

Mr. Smith rather than petitioner during 2004 and therefore does

not qualify as petitioner’s dependent for that year, see sec.

152(e)(1) as in effect for tax years beginning before January 1,

2005; and (2) is not treated as petitioner’s qualifying child or

qualifying relative for 2005, see sec. 152(e)(1) as in effect for

tax years beginning after December 31, 2004.

     It follows that petitioner is not entitled to a dependency

exemption deduction for her daughter for either year in issue,

and respondent’s disallowances of those deductions are sustained.

C. Earned Income Credit

     Subject to various conditions and limitations, section 32(a)

provides that an eligible individual is entitled to an earned

income credit.   An individual is an “eligible individual” within

the meaning of section 32(a) if the individual:     (1) Has a

qualifying child, see sec. 32(c)(1)(A)(i); or (2) does not have a

qualifying child, does not qualify as the dependent of another

taxpayer, and meets certain residency and age requirements, see

sec. 32(c)(1)(A)(ii).     This is true for both years in issue.   For

each of those years petitioner claimed an earned income credit

computed by treating her daughter as a qualifying child for

purposes of that credit, and for each year respondent disallowed

the credit.
                               - 8 -

     Respondent agrees that for both years in issue petitioner is

an eligible individual who does not have a qualifying child

within the meaning of section 32(c)(1)(A)(ii).    Respondent now

concedes that petitioner is entitled to a $189 earned income

credit for 2004.   Respondent correctly points out, however, that

although petitioner is otherwise an eligible individual without a

qualifying child, her income for 2005, in effect, precludes the

allowance of any earned income credit to her for that year. See

sec. 32(b), (f).

     According to respondent, the earned income credit claimed on

petitioner’s return for each year in issue is improperly computed

because petitioner’s daughter is not petitioner’s qualifying

child for either of those years.   We agree.   Among other

requirements, to be treated as a taxpayer’s qualifying child for

purposes of the earned income credit, the child must have the

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

half of the taxable year.   See sec. 32(c)(3)(A)(ii) (as in effect

for tax years ending before January 1, 2005); secs. 32(c)(3)(A),

152(c) (as in effect for tax years beginning after December 31,

2004).   Because petitioner and her daughter did not share the

same principal place of abode for more than one-half of either

year in issue, petitioner’s daughter may not be treated as her

qualifying child for purposes of that credit for either year.
                                 - 9 -

Respondent’s disallowances of the earned income credits here in

dispute are sustained.

D. Additional Child Tax Credit

     Petitioner claimed an additional child tax credit on her

2005 return.   According to petitioner, her daughter fits within

the definition of her qualifying child for purposes of that

credit.   Respondent has determined otherwise, and we agree with

respondent.

     In general, and subject to various conditions and

limitations, a taxpayer is allowed an additional child tax credit

with regard to each qualifying child of the taxpayer for whom the

taxpayer is entitled to a dependency exemption deduction.          Sec.

24(a), (d).

     For reasons discussed above, we have found that petitioner

is not entitled to a dependency exemption deduction for her

daughter for 2005.   It follows that petitioner is not entitled to

treat her daughter as a qualifying child for purposes of the

additional child tax credit for that year.       Respondent’s

disallowance of that credit for 2005 is sustained.

     To reflect the foregoing,


                                              Decision will be

                                         entered under Rule 155.