                  T.C. Summary Opinion 2006-98



                     UNITED STATES TAX COURT



                SHAUN DION BRANDON, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 19975-04S.             Filed July 5, 2006.


     Shaun Dion Brandon, pro se.

     Robert Mopsick, 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.   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 deficiency in petitioner’s Federal

income tax of $3,677 for the taxable year 2003.   The issues for

decision are: (1) Whether petitioner is entitled to a dependency

exemption deduction for his nephew; (2) whether petitioner is

entitled to head-of-household status; (3) whether petitioner is

entitled to an earned income credit; and (4) whether petitioner

is entitled to a child care 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 South Orange, New Jersey.

     During taxable year 2003, petitioner resided in a third-

floor apartment in a multifamily residence in Newark, New Jersey.

Forms W-2 included as part of the underlying record show that

during taxable year 2003, petitioner was employed by both

Goldring Gulf Distributing of Fort Walton, Florida, and Five Star

Carting of Brooklyn, New York, and had listed addressess for each

in Navarre, Florida, and Brooklyn, New York, respectively.   In

addition to the aforementioned addresses, petitioner listed his

address on his 2003 Form 1040, U.S. Individual Income Tax Return,

as South Orange, New Jersey.   Petitioner resided at the Newark,

New Jersey, address for 7 to 9 months of the taxable year 2003,

with the additional addresses in Florida and New York being that
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of his former residence and the residence of his fiancee,

respectively.    Petitioner was single throughout the taxable year

2003.

     In either late 2002 or early 2003, a fire destroyed an

apartment building where petitioner’s sister, Monique Brandon,

resided with her three minor children.    In the aftermath of the

fire, the eldest child, SAB,1 came to live with petitioner in his

residence at 40 Mapes Avenue in Newark, New Jersey.    During this

time, petitioner assisted his nephew, providing food and shelter

and, on some occasions, financial aid.    Although additional

financial support was provided to petitioner from petitioner’s

mother and grandmother, neither the child’s mother nor his father

provided any financial support to the child or petitioner.      SAB

returned to his mother’s residence in Orange, New Jersey, at some

time before the start of the 2003-2004 school year.

     Petitioner reported wage income of $16,868 in 2003.       On his

2003 Federal income tax return, petitioner claimed a dependency

exemption deduction for SAB, an earned income credit deduction,

and an additional child care tax credit.    Petitioner also filed

as head of household on his 2003 Federal income tax return.

     Respondent disallowed the dependency exemption deduction on

the ground that petitioner failed to establish that he provided



     1
        The Court uses only the initials of the minor child.
                                - 4 -

over half of the support for SAB.    As a result of the

disallowance, respondent further determined that petitioner’s

filing status was single, not head of household, and disallowed

both the claimed earned income credit and the child care credit.

                              Discussion

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

notice of deficiency is presumed correct.    Welch v. Helvering,

290 U.S. 111, 115 (1933).    In pertinent part, Rule 142(a)(1)

provides the general rule that “The burden of proof shall be upon

the petitioner”.    In certain circumstances, however, if the

taxpayer introduces credible evidence with respect to any factual

issue relevant to ascertaining the proper tax liability, section

7491 places the burden of proof on the Commissioner.      Sec.

7491(a)(1); Rule 142(a)(2).    Credible evidence is “‘the quality

of evidence which, after critical analysis, * * * A court would

find sufficient * * * to base a decision on the issue if no

contrary evidence were submitted’”.2 Baker v. Commissioner, 122

T.C. 143, 168 (2004) (quoting Higbee v. Commissioner, 116 T.C.

438, 442 (2001)).    Section 7491(a)(1) applies only if the

taxpayer complies with substantiation requirements, maintains all


     2
      We interpret the quoted language as requiring the
taxpayer’s evidence pertaining to any factual issue to be
evidence the Court would find sufficient upon which to base a
decision on the issue in favor of the taxpayer. See Bernardo v.
Commissioner, T.C. Memo. 2004-199.
                               - 5 -

required records, and cooperates with the Commissioner for

witnesses, information, documents, meetings, and interviews.

Sec. 7491(a)(2).   Although neither party alleges the

applicability of section 7491(a), we conclude that the burden of

proof has not shifted to respondent with respect to any of the

issues in this case.   Therefore, petitioner bears the

burden of showing that he is entitled to claim a dependency

exemption deduction for SAB; that he is entitled to head-of-

household filing status; that he is entitled to an earned

income credit for taxable year 2003; and that he is entitled to a

child tax credit for taxable year 2003.

      Moreover, deductions are a matter of legislative grace and

are allowed only as specifically provided by statute.        INDOPCO,

Inc. v. Commissioner, 503 U.S. 79, 84 (1992); New Colonial Ice

Co. v. Helvering, 292 U.S. 435, 440 (1934).

A.   Dependency Exemption

      Section 151(c) allows a taxpayer to deduct an annual

exemption amount for each dependent of the taxpayer.     A

“dependent” is defined under section 152(a) as an individual

“over half of whose support, for the calendar year in which the

taxable year of the taxpayer begins, was received from the

taxpayer (or is treated under subsection (c) or (e) as received

from the taxpayer)”.
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     In order to prevail, petitioner must show by competent

evidence:    (1) The dependent claimed satisfies the definitional

requirements provided in section 152(a) (the relationship

requirement); (2) the amount of total support provided for the

child claimed, and (3) that he provided more than half of such

support (taken together, the support requirement).    See secs.

151(c)(1)(A), 152(a).

     The claimed individual satisfies the definitional

requirement of “dependent” within the meaning of section 152(a)

under the relationship test as the nephew of petitioner.    Sec.

152(a)(6).   Accordingly, the remaining issue is whether the

petitioner provided more than one-half of his nephew’s total

support for 2003.

     “Support” may include:    food, shelter, clothing, medical and

dental care, education, etc.   See sec. 1.152-1(a)(2)(i), Income

Tax Regs.    The amount of total support provided by the taxpayer

may be reasonably inferred from competent evidence.    See Stafford

v. Commissioner, 46 T.C. 515, 518 (1966).    However, where an

actual amount of total support of a child during the taxable year

is not shown and cannot be reasonably inferred from competent

evidence, then it is not possible to conclude that the taxpayer

has contributed more than one-half.     See Blanco v. Commissioner,

56 T.C. 512, 515 (1971); Fitzner v. Commissioner, 31 T.C. 1252,

1255 (1959).
                                - 7 -

      Although we find petitioner’s testimony credible as to the

fact that he provided support for his nephew in the aftermath of

a fire which destroyed the child’s maternal home, the record

based solely on the testimony proffered is vague and incomplete.

Petitioner has not kept records of how much he spent on SAB, nor

could he reconstruct for the Court a dollar amount of total

support provided for his nephew.   Petitioner also testified at

trial that other family members, including his mother and

grandmother, provided financial support for SAB, although he

could not offer an accounting for these funds.   While we find

that petitioner made valiant efforts to sustain and support his

nephew in the aftermath of a family tragedy, petitioner

nonetheless failed to meet the statutorily imposed requirement to

establish the amount of his contributions to the support of SAB

during the taxable year 2003.   Because petitioner failed to

establish the total amount of support from all sources, we are

unable to conclude that petitioner provided more than one-half of

the total support for SAB, and therefore we sustain respondent on

this issue.

B.   Head-of-Household

      As previously stated, petitioner filed his 2003 Federal

income tax return as a head of household, and respondent changed

the filing status to single in the notice of deficiency.
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      Section 1(b) imposes a special income tax rate on an

individual filing as head of household.     As relevant herein,

section 2(b) defines “head of household” as an unmarried

individual who maintains as his or her home a household which

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

principal place of abode of “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”.     Sec.

2(b)(1)(A)(ii).

      We have already held that petitioner is not entitled to the

dependency exemption deduction pursuant to section 151 with

respect to SAB.   It follows, accordingly, that petitioner is not

entitled to head of household filing status.     Therefore, we

sustain respondent’s determination with respect to this issue.

C.   Earned Income Credit

      Petitioner claimed an earned income credit for taxable year

2003 with SAB as the qualifying child.     In the notice of

deficiency, respondent disallowed the earned income credit.

      Subject to certain limitations, an eligible individual is

allowed a credit which is calculated as a percentage of the

individual’s earned income. Sec. 32(a)(1).     Earned income

includes wages.   Sec. 32(c)(2)(A).    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
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“qualifying child” is one who satisfies a relationship test, a

residency test, and an age test.    Sec. 32(c)(3).   The pertinent

parts of section 32(c)(3) provide:

          (3) Qualifying child.--

               (A) In general.--The term “qualifying child”
          means, with respect to any taxpayer for any
          taxable year, an individual--

               (i) who bears a relationship to the taxpayer
          described in subparagraph (B),

               (ii) who has the same principal place of
          abode as the taxpayer for more than one-half
          of such taxable year, and

               (iii) who meets the age requirements of
          subparagraph (c).

     As relevant herein, a descendant of the taxpayer’s brother

or sister, whom the taxpayer cares for as his own child,

satisfied the relationship test.    Sec. 32(c)(3)(B)(i)(II).

Therefore, we are willing to assume that SAB satisfies the

relationship test.

     However, although we find petitioner’s testimony credible

that SAB did reside at his residence in Newark, New Jersey, for a

period of time in 2003, petitioner did not offer into evidence

any documentation or any testimony to establish that such period

was more than one-half of the year.
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D.   Child Tax Credit

      Petitioner claimed a child tax credit for the taxable year

2003 with SAB as the qualifying child.     In the notice of

deficiency, respondent disallowed the child tax credit.

      Section 24(a) authorizes a child tax credit with respect to

each “qualifying child” of the taxpayer.     The term “qualifying

child” is defined in section 24(c).      As relevant to these facts,

a qualifying child means an individual with respect to whom the

taxpayer is allowed a deduction under section 151.     Sec.

24(c)(1)(A).

      We have already held that petitioner is not entitled to the

dependency exemption deduction under section 151 for SAB.

Accordingly, SAB is not considered a “qualifying child” within

the meaning of section 24(c).    It follows, therefore, that

petitioner is not entitled to a child tax credit under section

24(a).

      In view of the foregoing, we sustain the respondent’s

determination on this issue.

      Reviewed and adopted as the report of the Small Tax Case

Division.

                                      Decision will be entered

                                for respondent.
