                  T.C. Summary Opinion 2004-18



                     UNITED STATES TAX COURT



                  DARREN CARTER, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 2103–03S.            Filed February 25, 2004.


     Darren Carter, pro se.

     Diana P. Hinton and Robert A. Baxer, for respondent.



     POWELL, Special Trial Judge:   This case was heard pursuant

to the provisions of section 74631 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.

     Respondent determined a deficiency of $1,182 in petitioner’s


     1
        Unless otherwise indicated, subsequent section references
are to the Internal Revenue Code in effect for the year in issue.
                               - 2 -

2000 Federal income tax.   After a concession by petitioner,2 the

issue is whether petitioner is entitled to an earned income

credit (EIC).   Petitioner resided in Brooklyn, New York, at the

time the petition was filed.

     The relevant facts may be summarized as follows.   During the

year at issue petitioner resided with his girlfriend and her son

in Gastonia, North Carolina.   The child was not petitioner’s

biological child, was not adopted by petitioner, and was not

placed with petitioner by an authorized placement agency.   In

preparing his 2000 Federal income tax return, petitioner claimed

an EIC of $353 with the child as a qualifying child.3

     Section 32(a) provides for an EIC 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 one who

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

See sec. 32(c)(3)(A).

     For the year in issue, to satisfy the relationship test, a

qualifying child must be “a son or daughter of the taxpayer, or a

descendant of either,” “a stepson or stepdaughter of the

taxpayer, or” “an eligible foster child of the taxpayer.”   Sec.


     2
         Petitioner conceded that he is liable for unreported
income of $7,427.
     3
         Petitioner did not claim the child as a dependent for
purposes of sec. 151.
                                     - 3 -

32(c)(3)(B)(i).       In pertinent part, section 32(c)(3)(B)(iii)(I)

provides that an “eligible foster child” is an individual who “is

placed with the taxpayer by an authorized placement agency”.

Additionally, married persons must file a joint return in order

to claim an EIC.       Sec. 32(d).

       It is clear that the child was neither petitioner’s son nor

an eligible foster child.4      As we understand petitioner’s

argument the child is petitioner’s stepson because he had a

“common-law marriage” with his girlfriend under North Carolina

law.       It appears that this “common-law marriage” was an illusory

event, even to petitioner.       At the time of the trial, he had not

obtained a divorce, did not consider himself to be married to the

woman, and did not consider the child to be his stepson.

Moreover, even if we were to accept petitioner’s argument, he did

not file a joint return.       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.




       4
         Sec. 7491(a), concerning burden of proof, has no bearing
on the underlying issue.
