                     T.C. Summary Opinion 2006-73



                       UNITED STATES TAX COURT



                   UNTAYIA L. CHIZER, Petitioner v.
             COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 7364-05S.              Filed May 3, 2006.


     Untayia L. Chizer, pro se.

     R. Scott Shieldes, for respondent.




     DEAN, 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.    Unless otherwise

indicated, subsequent section references are to the Internal

Revenue Code as in effect for the taxable year at issue, and all

Rule references are to the Tax Court Rules of Practice and

Procedure.    The decision to be entered is not reviewable by any
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other court, and this opinion should not be cited as authority.

      Respondent determined for 2003 a deficiency in petitioner’s

Federal income tax of $4,991.

      The issues for decision are whether petitioner is entitled

to:   (1) Deductions for dependency exemptions; (2) head of

household filing status; (3) the earned income credit; and (4)

the additional child tax credit.

      The stipulated facts and exhibits received in evidence are

incorporated herein by reference.     At the time the petition was

filed, petitioner resided in Houston, Texas.

                              Background

      During 2003, petitioner resided in a household with her

mother, father, brother, sister, and her sister’s two children.

Petitioner filed her Federal income tax return for 2003 as head

of household, reported adjusted gross income of $13,088, and

claimed two dependency exemptions, CC and BD,1 the earned income

credit, and the additional child tax credit.

      In a letter to respondent in 2004, petitioner stated that

with regard to BD:     “I do not have the documentation necessary to

claim this person thus I am eliminating her as a dependent.”    The

letter enclosed a birth certificate for CC, petitioner’s own

statement that she paid for “at least half of the support of my

brother”, and a notarized statement from her mother to the effect


      1
          The Court only uses initials of minor children.
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that for 2003 petitioner paid a “portion” of her brother’s

support and provided him “a place of residence”.   Petitioner also

sent with the letter evidence that CC was enrolled in the Lane

School during part of “grading period 5” and all of “grading

period 6”.

                            Discussion

     The Commissioner’s determinations are presumed correct, and

generally taxpayers bear the burden of proving otherwise.2     Rule

142(a)(1); Welch v. Helvering, 290 U.S. 111, 115 (1933).

Dependency Exemption

     Petitioner claimed deductions for two dependency exemptions

for 2003 which respondent disallowed in the notice of deficiency.

Section 151(c)(1) allows a taxpayer to deduct an exemption amount

for each qualifying “dependent” whose income is under the

exemption amount.   A “dependent” means certain individuals,

including a brother, over half of whose support for the year was

received from or is treated as received from the taxpayer.     Sec.

152(a).

     To qualify for a dependency exemption deduction, a taxpayer

must establish the total support cost expended on behalf of a

claimed dependent from all sources for the year and demonstrate


     2
      Petitioner has not raised the issue of sec. 7491(a), which
shifts the burden of proof to the Commissioner in certain
situations. The Court concludes that sec. 7491 does not apply
here because petitioner has not produced any evidence that
establishes the preconditions for its application.
                                - 4 -

that she provided more than half of this amount.    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 furnished by all sources during the year in issue must

be established by competent evidence.    Blanco v. Commissioner,

supra at 514; sec. 1.152-1(a)(1), Income Tax Regs.    The amount of

support that the claimed dependent received from the taxpayer is

compared to the total amount of support the claimed dependent

received from all sources.    Sec. 1.152-1(a)(2)(i), Income Tax

Regs.

     Petitioner testified that “I feel that I should claim my

brother as a dependent.”    When asked by the Court for her proof

of support, petitioner replied:    “Well, I don’t have that proof.”

Petitioner has already admitted that she has no proof of support

for BD.

     The Court sustains respondent's determination that

petitioner is not entitled to dependency exemption deductions for

2003.

Head of Household

     Petitioner filed as a “head of household” for 2003.    In the

notice of deficiency, respondent determined petitioner’s proper
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filing status to be single.

     Section 1(b) imposes a special tax rate on individuals

filing as “heads of households”.      “Head of household” is defined

in section 2(b) as an unmarried individual who maintained as his

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

taxable year the principal place of abode for specific family

members.    See sec. 2(b)(1)(A).    A taxpayer is considered to be

maintaining a household only if over half the cost of maintaining

the household during the taxable year is furnished by the

taxpayer.    Sec. 2(b).

     Petitioner produced no evidence to show that she provided

over half the cost of maintaining the household during 2003.

Therefore, respondent’s determination on this issue is sustained.

Earned Income Credit

     Petitioner claimed the earned income credit for taxable year

2003 for two “qualifying children”.        Respondent determined that

petitioner is not entitled to the earned income credit for 2003.

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

income credit against the individual’s income tax liability.

Section 32(a)(2) limits the credit allowed, and section 32(b)

prescribes different percentages and amounts used to calculate

the credit based on whether the eligible individual has no

qualifying children, one qualifying child, or two or more

qualifying children.

     To be eligible to claim an earned income credit with respect
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to a qualifying child, a taxpayer must establish, inter alia,

that the child bears a relationship to the taxpayer prescribed by

section 32(c)(3)(B), that the child meets the age requirements of

section 32(c)(3)(C), and that the child shares the same principal

place of abode as the taxpayer for more than one-half of the

taxable year as prescribed by section 32(c)(3)(A)(ii).

     Under the relationship test, a brother would qualify if

petitioner had shown that she cared for the child as “her own

child”.   Sec. 32(c)(3)(B)(i)(II).   Petitioner has offered no

evidence that she cared for her brother as if he were her own

child.

     Although petitioner is not eligible to claim an earned

income credit under section 32(c)(1)(A)(i) for a qualifying

child, she may be an “eligible individual” under section

32(c)(1)(A)(ii) even if she does not have any qualifying

children.   For 2003, a taxpayer is eligible under this subsection

only if her adjusted gross income was less than $11,230.    Rev.

Proc. 2002-70, 2002-2 C.B. 845.   Petitioner’s adjusted gross

income was $13,088.

     Accordingly, petitioner is not eligible for an earned income

credit.   Respondent’s determination on this issue is sustained.

Additional Child Tax Credit

     For 2003, petitioner did not claim a child tax credit, but

she claimed an “additional child tax credit” of $259.    Respondent
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determined that petitioner is not entitled to an additional child

tax credit for 2003.

     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).    A “qualifying child” means

an individual with respect to whom the taxpayer is allowed a

deduction under section 151, who has not attained the age of 17

as of the close of the taxable year and who bears a relationship

to the taxpayer as prescribed by section 32(c)(3)(B).   Sec.

24(c)(1).   Because petitioner has not shown that she is entitled

to a deduction under section 151 for a “qualifying child”, she is

not entitled to a child tax credit.

     The child tax credit is a nonrefundable personal credit that

was added to the Internal Revenue Code by the Taxpayer Relief Act

of 1997, Pub. L. 105-34, sec. 101(a), 111 Stat. 796, with a

provision for a refundable credit, the “additional child tax

credit”, for families with three or more children.   For taxable

years beginning after December 31, 2000, the additional child tax

credit provision was amended to remove the restriction that only

families with three or more children are entitled to claim the

credit.   See sec. 24(d)(1); Economic Growth and Tax Relief

Reconciliation Act of 2001, Pub. L. 107-16, sec. 201(c)(1), 115

Stat. 46.

     In the absence of other nonrefundable personal credits, a
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taxpayer is allowed to claim a child tax credit in an amount that

is the lesser of the full child tax credit or the taxpayer’s

Federal income tax liability for the taxable year.         See sec.

26(a).

     If the child tax credit exceeds the taxpayer’s Federal

income tax liability for the taxable year, a portion of the child

tax credit may be refundable as an “additional child tax credit”

under section 24(d)(1).   Because petitioner is not entitled to a

child tax credit, she is not entitled to an additional child tax

credit.

     Reviewed and adopted as the report of the Small Tax Case

Division.

     To reflect the foregoing,

                                              Decision will be entered

                                         for respondent.
