                     T.C. Summary Opinion 2009-73



                       UNITED STATES TAX COURT



               TOMMIE LEE TRUSSELL, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 20460-06S.              Filed May 11, 2009.


     Tommie Lee Trussell, pro se.

     Brooke W. Patterson, for respondent.



     WELLS, Judge:    This case was heard pursuant to the

provisions of section 74631 of the Internal Revenue Code in

effect at the time the petition was filed.    Pursuant to section

7463(b), the decision to be entered is not reviewable by any




     1
      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.

      Respondent determined a deficiency of $2,440 in petitioner’s

2004 Federal income tax.    The issues we must decide are:    (1)

Whether petitioner is entitled to a dependency exemption

deduction for an unrelated minor child; and (2) whether

petitioner is entitled to the earned income credit as an

individual with an unrelated child.

                             Background

      Some of the facts were stipulated for trial pursuant to Rule

91.   The parties’ stipulations are incorporated into this opinion

by reference and are found accordingly.    At the time of filing

the petition, petitioner resided in Mississippi.

      ST2 was born in 1995 and is a minor child of Ginger Venear

Terry.    Petitioner is not related to ST, and during 2004

petitioner never resided with ST.    During 2004 petitioner

provided less than one-half of ST’s support.

      For taxable year 2004 petitioner timely filed a Form 1040,

U.S. Individual Income Tax Return, and, in that return,

petitioner claimed a dependency exemption deduction and an earned

income credit.




      2
      The Court refers to minor children by their initials.     Rule
27(a)(3).
                                 - 3 -
     On July 3, 2006, respondent sent petitioner a notice of

deficiency for 2004 in which respondent determined that

petitioner is not entitled to a dependency exemption deduction or

an earned income credit.

                           Discussion

Dependency Exemption Deduction

     In order to be entitled to a dependency exemption deduction,

petitioner must prove that he meets the requirements of sections

151 and 152.3

     For 2004,4 section 151(c)(1) provides that an exemption is

allowed for each person who is a dependent of a taxpayer as

defined in section 152 if the following requirements are met:

(a) The individual for whom an exemption is claimed is a son,

daughter, stepson, stepdaughter, sibling, parent or other

ancestor, stepparent, niece, nephew, aunt, uncle, certain

relatives-in-law, or an individual other than the taxpayer’s

spouse who, for the taxable year of the taxpayer, has as his or

her principal place of abode the home of the taxpayer and is a

member of the taxpayer’s household; (b) over one-half of the


     3
      Petitioner has not raised sec. 7491, and therefore it does
not apply. Consequently, petitioner bears the burden of proof.
See Rule 142(a).
     4
      The Working Families Tax Relief Act of 2004 (WFTRA), Pub.
L. 108-311, sec. 206, 118 Stat. 1176, amended sec. 151, effective
for tax years beginning after Dec. 31, 2004. WFTRA sec. 201, 118
Stat. 1169, amended sec. 152, effective for tax years beginning
after Dec. 31, 2004.
                              - 4 -
individual’s support for the taxable year is received from the

taxpayer; and (c) the individual’s gross income is less than the

exemption amount or the individual is the taxpayer’s child who is

younger than age 19 or is a student younger than age 24.    Secs.

151(c), 152(a).

     Petitioner bears the burden of proof.   As to ST, petitioner

is not entitled to a dependency exemption deduction for 2004

because petitioner has failed to show that ST resided with him as

part of his household for the entire year and that petitioner

provided more than one-half of ST’s support.

     Section 152(a)(9) requires that to be entitled to a

dependency exemption deduction for a person not related to the

taxpayer, the taxpayer must show that the individual for whom the

dependency exemption deduction is sought has lived with the

taxpayer as part of the taxpayer’s household for the entire

taxable year.

     The record shows that during 2004 ST never resided with

petitioner.

     In addition to the residency requirement, to be entitled to

a deduction for a dependency exemption a taxpayer must establish

the total support costs expended on behalf of the claimed

dependent from all sources for that year and must demonstrate

that he or she provided over one-half of that amount.   Daya v.
                                 - 5 -
Commissioner, T.C. Memo. 2000-360; sec. 1.152-1(a)(2), Income Tax

Regs.

     Petitioner failed to prove that he provided more than one-

half of ST’s support for 2004.    At trial Ginger Venear Terry,

ST’s mother, testified that she provided more than one-half of

ST’s support.   Other than his own self-serving testimony, which

we do not find credible in light of Ms. Terry’s opposing

testimony, petitioner has offered no evidence to refute Ms.

Terry’s testimony or to substantiate in any way that he provided

more than one-half of ST’s support.

     On the basis of the meager record, petitioner has failed to

meet his burden of proof regarding his claimed dependency

exemption with respect to ST for 2004.

Earned Income Credit

     On his 2004 return petitioner claimed an earned income

credit based on ST as a qualifying child.    As relevant here

section 32(c)(1)(A) provides that for purposes of qualifying for

the earned income credit, an “eligible individual” is an

individual who has a qualifying child for the taxable year.5      A


     5
      Alternatively, under sec. 32(c)(1)(A) a taxpayer may
qualify as an “eligible individual” if the taxpayer has a
principal place of abode in the United States for more than one-
half of the tax year, is between the ages of 25 and 65 before the
close of the tax year, and is not a dependent for whom a
deduction is allowable. Petitioner has not claimed to be an
“eligible individual” under sec. 32(c)(1)(A), nor has he met his
burden of presenting sufficient evidence to qualify him as an
                                                   (continued...)
                                 - 6 -
“qualifying child” is defined as an individual’s child,

stepchild, sibling, step-sibling, a descendant of any of these,

or an eligible foster child (placed with the individual by an

authorized agency) whom the individual cares for as the

individual’s own child; who is under the age of 19 or a student

under the age of 24; and who has the same principal place of

abode as the individual for more than one-half of the taxable

year.    Sec. 32(c)(3).

     Petitioner is not related to ST and has produced no evidence

that ST was placed with him by an authorized placement agency.

Additionally, as we held above, petitioner has failed to prove

that ST had the same principal place of abode for more than one-

half of taxable year 2004.   On the basis of the foregoing, with

respect to petitioner, ST is not a qualifying child for purposes

of the earned income credit for 2004.

     We have considered all of the parties’ arguments, and, to

the extent they are not discussed in this opinion, we conclude

that they are without merit, irrelevant, or unnecessary to reach.

     To reflect the foregoing,


                                              Decision will be entered

                                         for respondent.




     5
      (...continued)
“eligible individual” under sec. 32(c)(1)(A).
