T.C. Summary Opinion 2017-22



                            UNITED STATES TAX COURT



                  ADRIAN COREY JENKINS, Petitioner v.
             COMMISSIONER OF INTERNAL REVENUE, Respondent



      Docket No. 28323-15S.                            Filed April 3, 2017.



      Adrian Corey Jenkins, pro se.

      Monica E. Koch, for respondent.



                                 SUMMARY OPINION


      GUY, Special Trial Judge: This case was heard pursuant to the provisions

of section 7463 of the Internal Revenue Code in effect when the petition was

filed.1 Pursuant to section 7463(b), the decision to be entered is not reviewable by


      1
          Unless otherwise indicated, all section references are to the Internal
                                                                           (continued...)
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any other court, and this opinion shall not be treated as precedent for any other

case.

        Respondent determined a deficiency of $3,493 in petitioner’s Federal

income tax for 2013. Petitioner filed a timely petition for redetermination with the

Court pursuant to section 6213(a). At the time the petition was filed, petitioner

resided in New York.

        After concessions,2 the issues remaining for decision are whether petitioner

is entitled to: (1) a dependency exemption deduction, (2) a child tax credit, (3) an

earned income credit, and (4) head of household filing status.

                                     Background

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

facts and the accompanying exhibits are incorporated herein by this reference.




        1
       (...continued)
Revenue Code, as amended and in effect for the year at issue, and all Rule
references are to the Tax Court Rules of Practice and Procedure. Monetary
amounts are rounded to the nearest dollar.
        2
        At trial petitioner submitted a Form 1098-T, Tuition Statement, indicating
that he paid $2,559 in qualified tuition and related expenses in 2013. Respondent
conceded that petitioner is entitled to a lifetime learning credit in an amount to be
determined by way of computations for entry of decision under Rule 155.
                                            -3-

I. Petitioner’s Child

      Petitioner and Michelle A. Chandler are the parents of a minor child

(R.K.J.) born in 2008. Petitioner and Ms. Chandler never married.

      On October 9, 2009, the Family Court of the State of New York in Kings

County (family court) issued an order and awarded Ms. Chandler full physical

custody of R.K.J. and awarded petitioner overnight visitation rights including one

day per week, every other weekend, approximately seven holidays, and two weeks

in both July and August. In October 2012 the family court modified its previous

order and awarded petitioner additional overnight visitation rights on weekends.

At trial petitioner provided the Court with a calendar indicating that R.K.J. lived

with him for 150 days in 2013.

      Petitioner paid $2,999 for R.K.J.’s support in 2013, including monthly child

support payments of $125, daycare expenses of $675, and other miscellaneous

expenses. Although petitioner maintained health insurance coverage for R.K.J.,

the record does not reflect the cost of the insurance. There is no evidence of the

amount that Ms. Chandler paid to support R.K.J. in 2013 or other sources of

financial support available to the child.
                                         -4-

II. Petitioner’s Tax Return for 2013

       Petitioner filed an individual Federal income tax return for 2013 claiming

head of household filing status, a dependency exemption deduction for R.K.J., an

earned income credit, and a child tax credit. Ms. Chandler or her mother also

claimed a dependency exemption deduction for R.K.J. for the taxable year 2013.

                                     Discussion

       As a general rule, the Commissioner’s determination of a taxpayer’s liability

in a notice of deficiency is presumed correct, and the taxpayer bears the burden of

proving that the determination is incorrect. Rule 142(a); Welch v. Helvering, 

, 115 (1933). Petitioner does not contend, and the record does not

suggest, that the burden of proof should shift to respondent pursuant to section

7491(a).

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

generally bears the burden of proving entitlement to any deduction or credit

claimed. Rule 142(a); INDOPCO, Inc. v. Commissioner, 

, 84 (1992);

New Colonial Ice Co. v. Helvering, 

, 440 (1934). Likewise, the

taxpayer is obliged to demonstrate entitlement to an advantageous filing status

such as head of household. See, e.g., Smith v. Commissioner, T.C. Memo. 2008-

229.
                                          -5-

I. Dependency Exemption Deduction

      An individual is allowed as a deduction an exemption for “each individual

who is a dependent (as defined in section 152) of the taxpayer for the taxable

year.” Sec. 151(a), (c). Section 152(a) defines the term “dependent” to include a

“qualifying child” or a “qualifying relative”.

      Generally, a “qualifying child” must (1) bear a specified relationship to the

taxpayer (e.g., be the taxpayer’s child), (2) have the same principal place of abode

as the taxpayer for more than one-half of such taxable year, (3) meet certain age

requirements, (4) not have provided over one-half of such individual’s own

support for the taxable year at issue, and (5) not have filed a joint return for that

year. Sec. 152(c)(1).

      Section 152(d) generally defines a “qualifying relative” as an individual

(1) who bears a specified relationship to the taxpayer (e.g., is the taxpayer’s child),

(2) whose gross income is less than the exemption amount, (3) with respect to

whom the taxpayer provides over one-half of the individual’s support, and (4) who

is not a qualifying child of such taxpayer or any other taxpayer.

      Respondent does not dispute that R.K.J. satisfies the age and relationship

requirements of section 152(c). Respondent does not agree, however, that R.K.J.
                                         -6-

lived with petitioner for more than one-half of the taxable year or that petitioner

provided more than one-half of R.K.J.’s support.

       Petitioner presented evidence at trial that R.K.J. spent 150 days with him

during 2013. In the absence of any additional or contrary evidence, we conclude

that R.K.J. spent the remainder of 2013, or 215 days, with Ms. Chandler, the

child’s custodial parent. Because R.K.J. did not have the same principal place of

abode as petitioner for more than one-half of the year, it follows that R.K.J. was

not his qualifying child within the meaning of section 152(c).

      Petitioner demonstrated that he paid at least $2,999 for R.K.J.’s support in

2013. There is no evidence, however, of the amounts that Ms. Chandler or her

mother paid to support R.K.J. or other sources of financial support available to the

child. Because petitioner failed to show that he provided more than one-half of

R.K.J.’s support in 2013, it follows that R.K.J. was not petitioner’s qualifying

relative within the meaning of section 152(d). Consequently, we sustain

respondent’s determination disallowing the dependency exemption deduction in

dispute.3

      3
       Although sec. 152(e) permits a noncustodial parent to claim a dependency
exemption deduction with respect to his or her child if the custodial parent signs a
written declaration conforming with Form 8332, Release/Revocation of Release of
Claim to Exemption for Child of Custodial Parent, indicating that he or she will
                                                                       (continued...)
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II. Child Tax Credit

      Section 24(a) provides a tax credit with respect to each qualifying child of

the taxpayer for whom the taxpayer is allowed a deduction under section 151.

Section 24(c)(1) defines the term “qualifying child” as a “qualifying child of the

taxpayer (as defined in section 152(c)) who has not attained age 17.” As

previously discussed, R.K.J. was not petitioner’s qualifying child as defined in

section 152(c) for the taxable year 2013, and, therefore, petitioner is not entitled to

the child tax credit in dispute.

III. Earned Income Credit

      Section 32(a)(1) allows an eligible individual an earned income tax credit

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

who has a qualifying child for the taxable year.4 The term “qualifying child” is

defined in section 32(c)(3)(A) to mean a qualifying child of the taxpayer (as

defined in section 152(c), determined without regard to paragraph (1)(D) thereof

and section 152(e)). Consistent with the preceding discussion, R.K.J. was not


      3
        (...continued)
not claim the dependent child for that year, there is no evidence that Ms. Chandler
executed such a written declaration. See Armstrong v. Commissioner, 

, 472 (2012), aff’d, 

(8th Cir. 2014).
      4
       Petitioner offered no evidence that he is an eligible individual under sec.
32(c)(1)(A)(ii).
                                              -8-

petitioner’s qualifying child as that term is defined in section 152(c). It follows

that petitioner is not eligible for an EIC.

IV. Head of Household Filing Status

        Section 1(b) prescribes a relatively favorable tax schedule for a taxpayer

who qualifies as a “head of household”. Section 2(b) defines a head of household,

as relevant herein, as an individual taxpayer who: (1) is unmarried as of the close

of the taxable year and is not a surviving spouse; and (2) maintains as his home a

household that constitutes for more than one-half of the taxable year the principal

place of abode, as a member of such household, of (a) a qualifying child of the

individual (as defined in section 152(c), determined without regard to section

152(e)), or (b) 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.

See Rowe v. Commissioner, 

, 16-17 (2007).

        As previously discussed, R.K.J. was not petitioner’s qualifying child within

the meaning of section 152(c) for 2013, nor was petitioner entitled to a

dependency exemption deduction for him under section 151. Consequently,

petitioner does not qualify for head of household filing status for the 2013 tax

year.
                             -9-

To reflect the foregoing,


                                   Decision will be entered

                            under Rule 155.