                        T.C. Memo. 2008-154



                      UNITED STATES TAX COURT



                    GLEN GODBY, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 9709-06.               Filed June 17, 2008.



     Glen Godby, pro se.

     Denise A. DiLoreto, for respondent.



                        MEMORANDUM OPINION


     GOEKE, Judge:   Respondent determined a deficiency for 2003

based upon the disallowance of head of household filing status

and the earned income credit.   Because petitioner’s two children

lived with him for less than one-half the year, we sustain

respondent’s determination.
                               - 2 -

                            Background

     The parties submitted this case fully stipulated pursuant to

Rule 122.1   The stipulation of facts and the attached exhibits

are incorporated herein by this reference.    At the time the

petition was filed, petitioner resided in West Virginia.

     On his Form 1040, U.S. Individual Income Tax Return, filed

for 2003, petitioner claimed head of household as his filing

status and also claimed an earned income credit based upon two

qualifying children--his two sons.

     Petitioner and his former spouse were married in 1992.     They

had two sons, one born in 1993 and one in 1994.   A decree of

divorce was entered ending the marriage in June 2002.   Pursuant

to an order of the West Virginia Family Court (family court),

petitioner was allowed to claim both of his sons as dependents on

his 2003 tax return.

     The 2002 decree of divorce provides that petitioner’s ex-

spouse was the primary custodian of the two children and that the

children were to live with her 64.66 percent of the time and to

live with petitioner 35.34 percent of the time.   This decree




     1
      All Rule references are to the Tax Court Rules of Practice
and Procedure, and all section references are to the Internal
Revenue Code, as amended and as in effect for the year in issue,
unless otherwise indicated.
                               - 3 -

remained in effect until December 2003 when the family court

ordered petitioner to have the children every other weekend and

from December 26 until the end of the year.

     On February 13, 2006, respondent issued a statutory notice

of deficiency to petitioner for 2003 determining an income tax

deficiency of $4,204.   On May 22, 2006, petitioner filed a

petition.   In order to be timely, the petition was due to be

filed on or before May 15, 2006.   The wrapper in which the

petition was mailed to the Court shows a U.S. postmark of May 15,

2006.   Therefore, the Court deems the petition timely.

                            Discussion

     Section 2(b) provides, as pertinent to this case, that an

individual is entitled to filing status as head of household if

the individual is not married at the close of the taxable year

and maintains as his or her home a household which is for more

than one-half of the taxable year the principal place of abode of

his or her child.   A taxpayer does not qualify for filing as head

of household when he or she fails to produce proof that the child

lived with the taxpayer for more than one-half of the year in

question.   Castleton v. Commissioner, T.C. Memo. 2005-58, affd.

188 Fed. Appx. 561 (9th Cir. 2006).

     Section 32 allows an eligible individual to claim an earned

income credit against his or her income for the taxable year, and

the amount of the credit is calculated as a percentage of the
                                - 4 -

taxpayer’s earned income.   The issue is whether petitioner is

entitled to the credit based upon having qualifying children as

defined in section 32(c)(3).   Section 32(c)(3)(A)(ii) includes in

the definition of a qualifying child the requirement that the

child have “the same principal place of abode as the taxpayer for

more than one-half of such taxable year”.

     Rule 142(a) provides that the “burden of proof shall be upon

the petitioner”.   However under section 7491 if the taxpayer

introduces credible evidence with respect to a factual issue,

the burden of proof is placed upon the Commissioner.   Section

7491 does not apply here.   Petitioner has failed to meet the

requirements of section 7491(a)(2) because he failed to

substantiate or for that matter provide any evidence as to where

his children resided during the taxable year.   The only evidence

in the record supports respondent’s conclusion that petitioner is

not entitled to the credit associated with two qualifying

children.   As we have found in our findings of fact, the family

court provided that petitioner’s ex-spouse would be the custodial

parent and that she would have custody for approximately two-

thirds of the taxable year.    Petitioner has failed to provide any

evidence that either of the children had as his principal place

of abode petitioner’s home for more than one-half of the taxable

year in 2003.   Accordingly, we hold that petitioner is liable for

the $4,204 income tax deficiency for the 2003 tax year.
                            - 5 -

To reflect the foregoing,


                                    Decision will be entered

                            for respondent.
