                         T.C. Memo. 2011-124



                       UNITED STATES TAX COURT



                       JOY WEBB, Petitioner v.
             COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 19128-09.                Filed June 6, 2011.



     Joy Webb, pro se.

     Courtney S. Bacon, for respondent.



               MEMORANDUM FINDINGS OF FACT AND OPINION


     CHIECHI, Judge:     Respondent determined a deficiency of

$2,401 in petitioner’s Federal income tax (tax) for her taxable

year 2008.
                                  -2-

        The issues for decision for petitioner’s taxable year 2008

are:1

        (1) Does petitioner have gross receipts and net profit of

$10,400 from a trade or business?       We hold that she does not.

        (2) Is petitioner entitled to a dependency exemption deduc-

tion under section 151(a)2 for each of her two grandchildren,

Nina Moore and Kyle Moore?     We hold that she is not.

        (3) Is petitioner entitled to head of household filing

status under section 2(b)?     We hold that she is not.

        (4) Is petitioner entitled to the earned income tax credit

under section 32(a)?     We hold that she is not.

                           FINDINGS OF FACT

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

        At the time petitioner filed the petition, she resided in

Union City, Georgia (Union City), which is in Fulton County,

Georgia (Fulton County).3




        1
      Certain other issues arise from certain other determina-
tions of respondent in the notice of deficiency issued to peti-
tioner for her taxable year 2008. Resolution of those issues
flows automatically from our resolution of certain issues ad-
dressed herein.
        2
      All section references are to the Internal Revenue Code in
effect for the year at issue. All Rule references are to the Tax
Court Rules of Practice and Procedure.
        3
      We take judicial notice that Union City is in Fulton
County.
                                -3-

     Petitioner is the maternal grandmother of Nina Moore, who

was born on October 11, 1987, and Kyle Moore, who was born on

July 3, 1991.   Petitioner’s daughter, Deana Moore (Ms. Moore), is

the mother of Nina Moore and Kyle Moore.   At all relevant times,

Ms. Moore resided at 460 Rivers Road, Fayetteville, Georgia

(Fayetteville), which is in Fayette County, Georgia (Fayette

County).4

     During 2008, Nina Moore was enrolled at Valdosta State

University where she started matriculating in the fall of 2006.

A transcript with respect to Nina Moore that Valdosta University

issued on March 24, 2009, showed her address as 460 Rivers Road,

Fayetteville, which was the residence of her mother, Ms. Moore.

     During 2008, Kyle Moore was enrolled as a senior at Sandy

Creek High School in Fayette County, where he started matriculat-

ing in the fall of 2005.   A transcript with respect to Kyle Moore

that Sandy Creek High School issued on October 3, 2008, did not

show his address.

     At no relevant time did petitioner maintain a checking

account or document any money that she may have received or

expended.

     On dates not disclosed by the record, petitioner provided

certain babysitting services for certain children of two individ-


     4
      We take judicial notice that Fayetteville is in Fayette
County.
                                 -4-

uals, which at times included providing food.    In exchange for

those babysitting services, petitioner received certain house-

keeping services from one of those individuals and a small amount

of cash from the other.    At no time did petitioner include the

value of those housekeeping services or that small amount of cash

in income in a tax return that she filed.

     Petitioner filed Form 1040, U.S. Individual Income Tax

Return, for her taxable year 2008 (2008 return).    In that return,

petitioner reported taxable interest of $820 and taxable pensions

and annuities of $3,631.    In Schedule C-EZ, Net Profit From

Business (Schedule C), that petitioner included with her 2008

return, petitioner described her claimed business as “CHILDCARE”

and claimed gross receipts of $10,400, no expenses, and net

profit of $10,400.   In her 2008 return, petitioner also claimed

(1) dependency exemption deductions for her grandchildren, Nina

Moore and Kyle Moore, (2) head of household filing status, and

(3) the earned income tax credit with respect to those grandchil-

dren.   In Schedule EIC, Earned Income Credit, that petitioner

included with her 2008 return, petitioner claimed that during

2008 both Nina Moore and Kyle Moore lived with her for 12 months.

However, petitioner indicated, inconsistently, on page 1 of her

2008 return, on which she showed Nina Moore and Kyle Moore on

line 6c as her dependents, that during 2008 neither of those

grandchildren lived with her.
                                -5-

     Respondent issued to petitioner a notice of deficiency

(notice) for her taxable year 2008.     In that notice, respondent,

inter alia, determined that petitioner has no Schedule C gross

receipts or net profit.   Respondent also determined in the notice

that petitioner is not entitled to (1) dependency exemption

deductions for Nina Moore and Kyle Moore, (2) head of household

filing status, and (3) the earned income tax credit.

                              OPINION

     Petitioner has the burden of establishing that the determi-

nations in the notice are wrong.   See Rule 142(a); Welch v.

Helvering, 290 U.S. 111, 115 (1933).

     In support of her position with respect to each of the

issues presented in this case, petitioner relies primarily on her

own testimony and on the testimony of her daughter Ms. Moore.     We

found the testimony of petitioner to be in certain material

respects conclusory, general, vague, uncorroborated, and self-

serving.   We found the testimony of Ms. Moore to be in certain

material respects conclusory, vague, uncorroborated, and serving

the interests of petitioner, her mother.    We are not required to,

and we shall not, rely on the respective testimonies of peti-

tioner and her daughter, Ms. Moore, in order to establish peti-

tioner’s position with respect to each of the issues presented.

See, e.g., Tokarski v. Commissioner, 87 T.C. 74, 77 (1986).
                                -6-

Schedule C Gross Receipts and Net Profit

     Petitioner claims that during 2008 Ms. Moore, her daughter,

paid her $200 a week to “watch”5 certain of Ms. Moore’s children.

The only evidence that petitioner presented in support of that

claim is the respective testimonies of herself and Ms. Moore, on

which we are unwilling to rely, and a letter written by Ms. Moore

that stated:   “This is a letter stating that I pay $200 a week to

Joy Webb [petitioner] to watch my children.   She has been watch-

ing them for years.”

     On the record before us, we reject petitioner’s claim that

during 2008 Ms. Moore paid her $200 a week to “watch” certain of

Ms. Moore’s children.   Even if we accepted that claim, petitioner

has failed to carry her burden of establishing that for her

taxable year 2008 she was in the trade or business of

(1) “watching” certain of Ms. Moore’s children, (2) babysitting

any other children, or (3) performing any other child care

activities.

     Based upon our examination of the entire record before us,

we find that petitioner has failed to carry her burden of estab-




     5
      We do not know what petitioner and Ms. Moore intended when
they used the word “watch”. Although Ms. Moore claimed during
her testimony that she paid petitioner $200 a week to babysit two
of her children, petitioner claims on brief that her daughter,
Ms. Moore, paid her $200 a week to “to do various things such as
baby-sit, clean house, run errands and cook.”
                                  -7-

lishing that for her taxable year 2008 she has Schedule C gross

receipts and net profit of $10,400.

Dependency Exemption Deductions

     Section 151(a) provides that “the exemptions provided by

this section shall be allowed as deductions” to a taxpayer.

Section 151(c) provides an exemption for each dependent of the

taxpayer as defined in section 152.

     Section 152(a) defines the term “dependent” to mean either a

qualifying child or a qualifying relative.

     Section 152(c) defines the term “qualifying child” as

follows:

     SEC. 152.   DEPENDENT DEFINED.

          (c) Qualifying Child.--For purposes of this
     section--

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

                      (A) who bears a relationship to the
                 taxpayer described in paragraph (2),

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

                      (C) who meets the age requirements of
                 paragraph (3), and

                      (D) who has not provided over one-half
                 of such individual’s own support for the
                 calendar year in which the taxable year of
                 the taxpayer begins.
                                 -8-

As pertinent here, for purposes of section 152(c)(1)(A) an

individual bears a relationship to the taxpayer if that individ-

ual is a grandchild of the taxpayer.   See sec. 152(c)(2)(A).    As

pertinent here, for purposes of section 152(c)(1)(C) an individ-

ual meets the age requirements if that individual is (1) under

age 19 as of the close of the calendar year in which the tax-

payer’s taxable year begins, see sec. 152(c)(3)(A)(i), or (2) a

student, as defined in section 152(f)(2), who is not 24 years old

as of the close of that calendar year, see sec. 152(c)(3)(A)(ii).

     Section 152(d) defines the term “qualifying relative” as

follows:

     SEC. 152.   DEPENDENT DEFINED.

          (d) Qualifying Relative.--For purposes of this
     section--

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

                      (A) who bears a relationship to the
                 taxpayer described in paragraph (2),

                      (B) whose gross income for the calendar
                 year in which such taxable year begins is
                 less than the exemption amount (as defined in
                 section 151(d)),

                      (C) with respect to whom the taxpayer
                 provides over one-half of the individual’s
                 support for the calendar year in which such
                 taxable year begins, and

                      (D) who is not a qualifying child of
                 such taxpayer or of any other taxpayer for
                 any taxable year beginning in the calendar
                 year in which such taxable year begins.
                                -9-

As pertinent here, for purposes of section 152(d)(1)(A) an

individual bears a relationship to the taxpayer if that individ-

ual is a grandchild of the taxpayer, see sec. 152(d)(2)(A), or is

“An individual * * * who, for the taxable year of the taxpayer,

has the same principal place of abode as the taxpayer and is a

member of the taxpayer’s household”, see sec. 152(d)(2)(H).

     The disputes between the parties as to whether petitioner is

entitled to a dependency exemption deduction for each of her

grandchildren, Nina Moore and Kyle Moore, for petitioner’s

taxable year 2008 include the following:

     (1) Did Nina Moore and Kyle Moore each have the same princi-

pal place of abode as petitioner for more than one-half of

petitioner’s taxable year 2008, as required for each of them to

satisfy the definition of a dependent in section 152(a)(1) as a

qualifying child under section 152(c)?   See sec. 152(c)(1)(B).

     (2) Did petitioner provide for 2008 more than one-half of

the total support of each of her grandchildren, Nina Moore and

Kyle Moore, as required for each of them to satisfy the defini-

tion of a dependent in section 152(a)(2) as a qualifying relative

under section 152(d)?   See sec. 152(d)(1)(C).

     We turn to the first question set forth above.   We find no

reliable evidence in the record that Nina Moore or Kyle Moore

resided with petitioner during any portion of 2008.   On the

record before us, we find that petitioner has failed to carry her
                                 -10-

burden of establishing that she and Nina Moore and she and Kyle

Moore had the same principal place of abode at any time during

that year, let alone for more than one-half of that year.    See

sec. 152(c)(1)(B).    On that record, we find that petitioner has

failed to carry her burden of establishing that for her taxable

year 2008 each of her grandchildren, Nina Moore and Kyle Moore,

is her qualifying child, as defined in section 152(c), and that

therefore each of them is her dependent, as defined in section

152(a)(1).

     We turn now to the second question stated above; namely,

whether petitioner provided for 2008 more than one-half of the

total support of each of her grandchildren, Nina Moore and Kyle

Moore.   In order to prove that she did, petitioner must establish

(1) the total amount of support from all sources provided during

2008 to each of those grandchildren and (2) that petitioner

provided during that year over one-half of that total amount for

each grandchild.     See Archer v. Commissioner, 73 T.C. 963, 967

(1980); Blanco v. Commissioner, 56 T.C. 512, 514-515 (1971); sec.

1.152-1(a)(2)(i), Income Tax Regs.

     The term “support” includes 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 for each claimed

dependent provided by all sources during the year in question

must be shown by competent evidence.     Blanco v. Commissioner,
                                -11-

supra at 514.    Where the total amount of support provided to a

child during the year in question is not shown and may not

reasonably be inferred from competent evidence, it is not possi-

ble to find that the taxpayer contributed more than one-half of

that child’s total support.    Id. at 514-515; Fitzner v. Commis-

sioner, 31 T.C. 1252, 1255 (1959).

     We find no reliable evidence in the record establishing

(1) the total amount of any support that petitioner provided

during 2008 to each of her grandchildren, Nina Moore and Kyle

Moore, and (2) the total amount of support from all sources

provided during that year to each of them.    Nor did petitioner

proffer any evidence from which the Court might infer the total

amount of support from all sources provided during 2008 to each

of her grandchildren, Nina Moore and Kyle Moore.    On the record

before us, we find that petitioner has failed to carry her burden

of establishing that for 2008 she provided more than one-half of

the total support of Nina Moore and one-half of the total support

of Kyle Moore.    On that record, we further find that petitioner

has failed to carry her burden of establishing that for her

taxable year 2008 each of her grandchildren, Nina Moore and Kyle

Moore, is her qualifying relative, as defined in section 152(d),

see sec. 152(d)(1)(C), and that therefore each of them is her

dependent, as defined in section 152(a)(2).
                              -12-

     Based upon our examination of the entire record before us,

we find that petitioner has failed to carry her burden of estab-

lishing that she is entitled for her taxable year 2008 to depend-

ency exemption deductions under section 151(a) for her grandchil-

dren, Nina Moore and Kyle Moore.

Head of Household Filing Status

     Section 1(b) provides a special tax rate for an individual

who qualifies as a head of household.   As pertinent here, section

2(b)(1) provides that an unmarried individual “shall be consid-

ered a head of a household” if that individual “maintains as his

home a household which constitutes for more than one-half of such

taxable year the principal place of abode” of “a qualifying child

of the individual (as defined in section 152(c) * * *)”, sec.

2(b)(1)(A)(i), or “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).6

     We have found that petitioner has failed to carry her burden

of establishing that she and Nina Moore and she and Kyle Moore

had the same principal place of abode at any time during 2008,

let alone for more than one-half of that year.   We have also

found that petitioner has failed to carry her burden of estab-


     6
      Sec. 2(b)(1)(A)(i) contains two limitations that deny head
of household filing status where the taxpayer has a qualifying
child. Neither of those limitations is applicable in this case.
                               -13-

lishing that for her taxable year 2008 (1) each of her grand-

children, Nina Moore and Kyle Moore, is her qualifying child, as

defined in section 152(c), or her qualifying relative, as defined

in section 151(d), and (2) she is entitled to a dependency

exemption deduction for each of them.

     Based upon our examination of the entire record before us,

we find that petitioner has failed to carry her burden of estab-

lishing that she is entitled for her taxable year 2008 to head of

household filing status under section 2(b).

Earned Income Tax Credit

     Section 32(a)(1) permits an eligible individual as a credit

against tax for the taxable year an amount equal to the credit

percentage of so much of the taxpayer’s earned income for the

year as does not exceed the earned income amount.

     We turn first to whether for her taxable year 2008 peti-

tioner is an eligible individual for purposes of the earned

income tax credit provided in section 32(a)(1).    As pertinent

here, section 32(c)(1)(A)(i) defines the term “eligible individ-

ual” to mean “any individual who has a qualifying child for the

taxable year”.   Sec. 32(c)(1)(A)(i).7   As pertinent here, section

32(c)(3)(A) defines the term “qualifying child” to mean “a


     7
      The amount of the credit is determined according to
percentages that vary depending on whether the taxpayer has one
qualifying child, two or more qualifying children, or no
qualifying children. Sec. 32(b). The credit is also subject to
a limitation based on adjusted gross income. Sec. 32(a)(2).
                                -14-

qualifying child of the taxpayer (as defined in section 152(c)

* * *)”.

     We have found that petitioner has failed to carry her burden

of establishing that for her taxable year 2008 each of her

grandchildren, Nina Moore and Kyle Moore, is a qualifying child,

as defined in section 152(c).   On the record before us, we find

that petitioner has failed to carry her burden of establishing

that for her taxable year 2008 each of them is a qualifying

child, as defined in section 32(c)(3)(A).   On that record, we

further find that petitioner has failed to carry her burden of

establishing that for her taxable year 2008 she is an eligible

individual, as defined in section 32(c)(1)(A)(i).8

     We turn now to whether for her taxable year 2008 petitioner

has earned income for purposes of the earned income tax credit

provided by section 32(a)(1).   As pertinent here, section

32(c)(2)(A) defines the term “earned income” as follows:

     (2) Earned income.--

           (A) The term “earned income” means--

                (i) wages, salaries, tips, and other employee
           compensation, but only if such amounts are includ-


     8
      Petitioner does not claim that she is an eligible individ-
ual, as defined in sec. 32(c)(1)(A)(ii). Even if she made that
claim, the record is devoid of evidence establishing peti-
tioner’s age before the end of 2008. As a result, petitioner has
failed to carry her burden of establishing that she satisfies the
age requirements of sec. 32(c)(1)(A)(ii)(II), which she must
satisfy, among other requirements, in order to qualify as an
eligible individual, as defined in sec. 32(c)(1)(A)(ii).
                              -15-

          ible in gross income for the taxable year, plus

               (ii) the amount of the taxpayer’s net earn-
          ings from self-employment for the taxable year
          (within the meaning of section 1402(a)), but such
          net earnings shall be determined with regard to
          the deduction allowed to the taxpayer by section
          164(f).

Section 32(c)(2)(B) provides that for purposes of section

32(c)(2)(A) the term “earned income” does not include amounts

received as a pension or an annuity.

     We have found that petitioner has failed to carry her burden

of establishing that for her taxable year 2008 she has Schedule C

gross receipts and net profit of $10,400.   The only other income

that petitioner reported in her 2008 return was taxable interest

of $820 and taxable pensions and annuities of $3,631.   On the

record before us, we find that petitioner has failed to carry her

burden of establishing that for her taxable year 2008 she has

earned income, as defined in section 32(c)(2).

     Based upon our examination of the entire record before us,

we find that petitioner has failed to carry her burden of estab-

lishing that she is entitled for her taxable year 2008 to the

earned income tax credit under section 32(a).

     We have considered all of petitioner’s contentions and

arguments that are not discussed herein, and we find them to be

without merit, irrelevant, and/or moot.
                            -16-

To reflect the foregoing,


                                   Decision will be entered

                              for respondent.
