                         T.C. Memo. 2004-253



                       UNITED STATES TAX COURT



                 THOMAS SAMUEL LEAR, Petitioner v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 10644-02.            Filed November 8, 2004.


     Thomas Samuel Lear, pro se.

     Jack T. Anagnostis, for respondent.



                         MEMORANDUM OPINION


     VASQUEZ, Judge:    Respondent determined a deficiency of

$2,943 in petitioner’s 2000 Federal income tax.1

     After concessions,2 the issues for decision are:     (1)

     1
         All amounts are rounded to the nearest dollar.
     2
        Respondent concedes that petitioner is entitled to the
earned income credit and dependency exemption deduction for his

                                                     (continued...)
                                - 2 -

Whether petitioner is entitled to claim a dependency exemption

deduction for his daughter; and (2) whether petitioner is

entitled to claim the Earned Income Credit for his daughter.

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 he filed his

petition, petitioner resided in Lawrenceville, New Jersey.

     From late 1998 or early 1999 until the date of trial,

petitioner and Christine Challice (Ms. Challice) lived together.

Petitioner and Ms. Challice are not married.    Petitioner and Ms.

Challice have two children:   Jacob Lear (Jacob) and Amy Lear

(Amy) born June 17, 1999, and November 17, 2000, respectively.

     During 2000, neither petitioner nor Ms. Challice received

public assistance or financial aid of any kind.   Petitioner, Ms.

Challice, Amy, and Jacob lived with petitioner’s mother (Ms.

Lear) in her home from the time of Amy’s birth until April 2001.

     Petitioner was employed and reported total income of $16,657

for 2000.    Ms. Lear reported a higher adjusted gross income for

2000 than did petitioner.   During 2000, petitioner paid the

utility bills for the house and various miscellaneous expenses.

In the aggregate, the utility bills were approximately $600 per


     2
      (...continued)
son and is also entitled to head-of-household filing status for
2000.
                                   - 3 -



month.       Petitioner also provided food, diapers, and clothing for

Amy.       Insurance paid the costs of Amy’s birth and her medical

expenses.

                                Discussion

Dependency Exemption Deduction

       Section 151(c)3 allows a taxpayer to deduct an exemption

amount for each “dependent,” as defined in section 152.       Section

152(a) defines the term “dependent” to include the daughter of a

taxpayer “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)”.

       A taxpayer must establish the total cost of monetary

“support” expended on behalf of a claimed dependent from all

sources for the relevant year and establish that the taxpayer

provided over half of the total amount.4      Blanco v. Commissioner,

56 T.C. 512, 514-515 (1971); sec. 1.152-1(a)(2)(i), Income Tax

Regs.       “Support” includes items such as “food, shelter, clothing,

medical and dental care, education, and the like.”       Sec. 1.152-

1(a)(2)(i), Income Tax Regs.       The total amount of support



       3
        Unless otherwise indicated, all section references are to
the Internal Revenue Code, and all Rule references are to the Tax
Court Rules of Practice and Procedure.
       4
        Petitioner does not contend that sec. 7491(a) is
applicable to his case.
                               - 4 -

provided by all sources for the relevant year must be established

by competent evidence.   Blanco v. Commissioner, supra at 514.      To

determine whether a taxpayer provided more than half of the

support for a dependent, the amount of support provided by the

taxpayer is compared to the dependent’s total amount of support.

Sec. 1.152-1(a)(2)(i), Income Tax Regs.    The value of support in

the form of lodging is measured by its fair rental value.        Blarek

v. Commissioner, 23 T.C. 1037, 1039 (1955).

     We found petitioner to be forthright and candid and his

testimony to be credible.   Petitioner testified about various

amounts he expended to support Amy.    Petitioner, however, did not

establish the fair rental value of the lodging supplied by Ms.

Lear, nor did petitioner establish the total amount of support

provided for Amy in 2000.   We therefore sustain respondent’s

determination that petitioner is not entitled to a dependency

exemption deduction for Amy.

Earned Income Credit

     Section 32(a)(1) allows an eligible individual an earned

income credit against the individual’s income tax liability.       An

“eligible individual” is defined as either “any individual who

has a qualifying child for the taxable year” or any individual

who does not have a qualifying child and who meets the

requirements of section 32(c)(1)(A)(ii).     Merriweather v.

Commissioner, T.C. Memo. 2002-226.     A “qualifying child” is
                                 - 5 -

defined as an individual who satisfies a relationship test, a

residency test, and an age test.    Sec. 32(c)(3).     If more than

one individual would be treated as an eligible individual with

respect to the same qualifying child for the same taxable year,

only the individual with the highest modified adjusted gross

income for that taxable year will be allowed the earned income

credit.   Sec. 32(c)(1)(C).

     Petitioner satisfies the statutory requirements necessary to

qualify as an eligible individual, and Amy satisfies the

requirements for a qualifying child.       Under the Internal Revenue

Code applicable for the year in issue, however, petitioner must

also have the highest adjusted gross income of any eligible

individual with respect to Amy.    Petitioner conceded on cross-

examination that Ms. Lear, who is also an eligible individual

with respect to Amy for 2000, had a higher adjusted gross income

than he did.   Therefore, Ms. Lear is treated as the only eligible

individual with respect to Amy.    See Sutherland v. Commissioner,

T.C. Memo. 2001-8.   Accordingly, respondent’s determination is

sustained.

     To reflect the foregoing,


                                              Decision will be entered

                                         under Rule 155.
