                  T.C. Summary Opinion 2011-110



                     UNITED STATES TAX COURT



              ASHTON J. BLANKENSHIP, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 20921-04S.             Filed September 19, 2011.



     Ashton J. Blankenship, pro se.

     John K. Parchman, for respondent.



     ARMEN, 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 any



     1
        Unless otherwise indicated, all 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.
                               - 2 -

other court, and this opinion shall not be treated as precedent

for any other case.

     This matter is before the Court on respondent’s Motion For

Partial Summary Judgment, as supplemented.

     Respondent determined a deficiency of $4,503 in petitioner’s

Federal income tax for 2003.   The deficiency is attributable to:

(1) The disallowance of dependency exemption deductions for

petitioner’s minor daughter, A.B., and minor nephew, R.G.,2 (2)

the change in petitioner’s filing status from head of household

to single, and (3) the disallowance of the earned income credit

(EIC).3

     Respondent now concedes that petitioner is entitled to a

dependency exemption deduction for A.B.4

     Petitioner does not address whether he is entitled to claim

R.G. as a dependent for the dependency exemption deduction or the

head of household filing status, nor does he address whether R.G.



     2
        It is the Court’s policy to use initials when referring
to minors. See Rule 27(a)(3).
     3
        Petitioner asserts that he “filed taxes in a timely
manner” and that “[t]here should be no penalty for fileing [sic]
late.” We note that respondent did not determine any penalty or
addition to tax and that there is no issue in this case related
to any penalty or addition to tax.
     4
        Petitioner provided respondent with a Form 8332, Release
of Claim to Exemption for Child of Divorced or Separated Parents.
The mother of A.B. signed the Form 8332 as custodial parent
releasing her claim to the dependency exemption deduction to
petitioner.
                              - 3 -

is a qualifying child for EIC purposes.   As such, petitioner is

deemed to have conceded these issues under Rule 34(b)(4).   This

deemed concession is further supported by the fact that

petitioner, after filing his petition, sought to amend his 2003

Federal income tax return by, inter alia, dropping R.G. as a

claimed dependent, thereby eliminating one of his claimed

dependency exemptions and reducing the amount of his claimed EIC.5

     After the above concessions, the issues for decision are as

follows:6


     5
        The record contains no evidence that petitioner provided
over half of his nephew’s support as required by sec. 152(a), no
evidence that he maintained, as his home, a household that
constituted the principal place of abode of his nephew for over
half of 2003 as required by sec. 2(b)(1)(A), and no evidence that
his nephew was a qualifying child for purposes of sec.
32(c)(3)(A)(ii). Consequently, we would sustain respondent’s
disallowance of the claimed dependency exemption deduction,
filing status attributable to petitioner’s nephew, and claimed
EIC attributable to petitioner’s nephew regardless of
petitioner’s deemed concessions.
     6
        Petitioner also raises issues with respect to the
suspension and computation of interest. We note that, although
we might be sympathetic to petitioner’s situation, in the instant
case (an action for redetermination of deficiency), we lack
jurisdiction over interest that accrues on a tax deficiency that
has yet to be assessed. See McCauley v. Commissioner, T.C. Memo.
1988-431; cf. sec. 6404(h); Rules 280-284. Thus, we are bound by
our jurisdictional limits and cannot adjudicate petitioner’s
request to suspend the accrual of interest.

   We also note that, from the record, it appears that petitioner
is confused as to the amount respondent claims is due. A tax
“deficiency” is defined by statute, see sec. 6211(a), and does
not necessarily equal the amount due. For instance, a deficiency
does not include accrued interest, which is separately computed.
Here, the amount of petitioner’s tax deficiency will be computed
                                                    (continued...)
                               - 4 -

     (1) Whether petitioner is entitled to head of household

filing status; and

     (2) whether petitioner is entitled to the EIC.

                            Background

     None of the facts in this case have been stipulated by the

parties.   Petitioner resided in the State of Louisiana when the

petition was filed.

     Petitioner entered into the custody of the State of

Louisiana Department of Public Safety and Corrections on January

17, 2003, and served hard labor until his release to a detainer

for Caddo Parish on July 7, 2005.

     On his original 2003 Federal income tax return, petitioner

claimed dependency exemption deductions for his daughter, A.B.,

and his nephew, R.G.   In addition, petitioner claimed both head

of household filing status and the EIC, listing A.B. and R.G. as

qualifying children.

     Respondent mailed petitioner a notice of deficiency on

September 20, 2004, disallowing the claimed dependency exemption

deductions, head of household filing status, and the EIC.

     Petitioner filed a petition with the Court on November 1,

2004, and subsequently submitted an amended 2003 Federal income

tax return on December 2, 2004.   On the amended return,


     6
      (...continued)
under Rule 155, which computation should also reflect the amount
of tax due.
                                - 5 -

petitioner eliminated the claimed exemption for R.G. and

decreased the amount for the EIC.

      Respondent filed a Motion For Partial Summary Judgment on

June 22, 2011, and a supplement thereto on July 20, 2011.

                            Discussion

A.   Summary Judgment

      Summary judgment is intended to expedite litigation and

avoid unnecessary and expensive trials.    Fla. Peach Corp. v.

Commissioner, 90 T.C. 678, 681 (1988).    Summary judgment may be

granted with respect to all or any part of the legal issues in

controversy “if the pleadings, answers to interrogatories,

depositions, admissions, and any other acceptable materials,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that a decision may be

rendered as a matter of law.”   Rule 121(a) and (b).

      After a careful review of the record, and for the reasons

discussed hereinafter, we are satisfied that there is no genuine

issue as to any material fact and that a decision may be rendered

as a matter of law, notwithstanding the fact that respondent has

styled his motion as one for partial summary judgment.

B.   Head of Household Filing Status

      Given respondent’s concession that petitioner is entitled to

a dependency exemption deduction for A.B., petitioner’s taxable

income is zero for 2003 regardless of whether he claims single or
                                 - 6 -

head of household filing status.     As a result, petitioner’s

filing status has no tax effect for 2003 and, thus, warrants no

further discussion.7

C.   Earned Income Credit

     In the case of an “eligible individual”, section 32(a)

allows an EIC against the individual’s income tax liability.       As

immediately relevant herein, an eligible individual is defined as

an individual who has a “qualifying child” for the taxable year.

Sec. 32(c)(1)(A)(i).

     To be a qualifying child, an individual must, inter alia,

have the same principal place of abode as the taxpayer for more

than half of the taxable year.     Sec. 32(c)(3)(A)(ii).   Because

petitioner was incarcerated on January 17, 2003, and served hard

labor until his release to a detainer for Caddo Parish on July 7,

2005, A.B. did not have the same principal place of abode as

petitioner for more than half of 2003.     Cf. Rowe v. Commissioner,

128 T.C. 13 (2007) (dealing with a preconviction arrest).     It

follows, therefore, that petitioner is not entitled to an EIC on

the basis of a qualifying child.

     An individual may still be eligible for an EIC, however,

even if the individual does not have a qualifying child for the

taxable year.   Sec. 32(c)(1)(A)(ii).    Although respondent seeks


     7
        We note that, after a careful review of the record, it
appears petitioner would qualify for single, and not head of
household, filing status. See sec. 2(b)(1)(A).
                                - 7 -

complete disallowance of petitioner’s claimed EIC in his Motion

For Partial Summary Judgment, respondent concedes in his

supplement that petitioner is eligible for a portion of the

claimed EIC, without regard to a qualifying child, because of his

low income.    Thus, we will grant respondent’s Motion for Partial

Summary Judgment with respect to petitioner’s claimed EIC, but

only as to petitioner’s alleged qualifying child.

                             Conclusion

     Finally, in reaching the conclusions described herein, we

have considered all of the arguments made by the parties, and, to

the extent not expressly discussed above, we find that those

arguments do not support any result contrary to those reached

herein.

     To reflect the foregoing, as well as the parties’

concessions,


                                     An order granting, in part,

                                respondent’s Motion For Partial

                                Summary Judgment will be issued,

                                and decision will be entered under

                                Rule 155.
