                        T.C. Memo. 2008-96



                      UNITED STATES TAX COURT



                  LUCKENS FELIX, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 21983-06.             Filed April 14, 2008.



     Luckens Felix, pro se.

     Lauren B. Epstein, for respondent.



              MEMORANDUM FINDINGS OF FACT AND OPINION


     SWIFT, Judge:   Respondent determined a $5,924 deficiency in

petitioner’s Federal income tax for 2005.

     The issues for decision include petitioner’s entitlement to

dependency exemptions, to head of household filing status, to an

earned income credit of $2,493, and to child tax credits of $323

and $1,677.
                                 - 2 -
     All section references are to the Internal Revenue Code in

effect for the year at issue, and all Rule references are to the

Tax Court Rules of Practice and Procedure.


                         FINDINGS OF FACT

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

     At the time the petition was filed, petitioner resided in

Tampa, Florida.

     Petitioner works in Tampa, and petitioner’s wife lives in

Avon Park, Florida.   Since March 14, 1999, on weekdays petitioner

has lived in an apartment in Tampa, Florida, with his aunt and

with his aunt’s son, J.S.1   Petitioner’s aunt leases the

apartment from the Florida Housing Authority.

     On weekdays beginning in March 2005, petitioner’s godson,

K.M., also lived in the Tampa apartment because K.M. was under

the care of a doctor in Tampa.    Before March 2005, K.M. lived

full time with his mother in Avon Park.

     On most weekends from March to December 2005, petitioner

returned to Avon Park, approximately 63 miles from Tampa, to be

with his wife and to return K.M. to his mother, who lived across

the street from petitioner’s wife.

     In 2005, J.S. was 12 years old, and K.M. was 2 years old.




     1
         The Court uses initials when referring to minor children.
                                - 3 -
     The monthly rent due on the Tampa apartment was

approximately $250, but because petitioner’s aunt did not have a

job in 2005, the monthly rent was waived by the Florida Housing

Authority, and neither petitioner’s aunt, petitioner, nor anyone

else paid rent in 2005 on the Tampa apartment in which petitioner

lived with the above individuals.

     During 2005, because petitioner’s aunt did not have a job,

petitioner paid all utility bills and other costs of maintaining

the Tampa apartment.    Petitioner also paid for all of the food

and groceries that he, his aunt, J.S., and K.M. consumed.

     On his 2005 Federal income tax return, petitioner reported

more than $11,750 in earned income.      Also, petitioner claimed

dependency exemptions for J.S. and K.M., head of household filing

status, the earned income credit, and child tax credits for J.S.

and K.M., each of which respondent disallowed.


                               OPINION

Dependency Exemptions

     Generally, dependency exemptions are allowed for qualifying

children of a taxpayer and for qualifying relatives of a

taxpayer.   Secs. 151(c), 152(a).

     Neither J.S. nor K.M., as a cousin and as a godson of

petitioner, qualifies as a child of the taxpayer.      However, an

individual may, for dependency exemption purposes, be a

qualifying “relative” of a taxpayer if the individual meets the
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relationship, gross income, and support tests of section

152(d)(1).

     In his posttrial memorandum, respondent concedes that under

section 152(d)(1) J.S. is to be treated as a qualifying relative

and that petitioner is entitled to a dependency exemption for

2005 with regard to J.S.

     For K.M. to be treated as a qualifying relative of

petitioner, K.M. must, among other things, have lived with

petitioner as a member of petitioner’s household for the full

year in 2005.   Sec. 1.152-1(b), Income Tax Regs.   This full-year

residency requirement is relaxed somewhat for “temporary”

absences.    In this regard, section 1.152-1(b), Income Tax Regs.,

provides as follows:


     The taxpayer and dependent will be considered as
     occupying the household for such entire taxable year
     notwithstanding temporary absences from the household
     due to special circumstances * * * [such as] illness,
     education, business, vacation, military service, or a
     custody agreement under which the dependent is absent
     for less than six months * * *.


     Because K.M. resided with his mother, not with petitioner,

during January and February 2005 and because K.M.’s residence

with his mother during those 2 months does not qualify under the

above regulation as a temporary absence, petitioner is not

entitled to a dependency exemption with regard to K.M. for 2005.
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Head of Household Filing Status

     Under section 1(b), a special tax rate applies to a taxpayer

who qualifies as head of a household.    To be treated as head of a

household, a taxpayer must, among other things, have maintained

as his or her home a household which constituted the principal

place of abode of a qualifying child for more than one-half of

the year.   Sec. 2(b)(1).   However, for this purpose, J.S.--who

qualifies as a dependent for exemption purposes under section

152(d)(1) only because of the “household” test of section

152(d)(2)(H)--does not qualify as a qualifying child for purposes

of petitioner’s claim to head of household filing status.    See

sec. 2(b)(3)(B).

     Accordingly, petitioner does not qualify for head of

household filing status.


Earned Income Credits

     Under section 32(a), a taxpayer may be entitled to an earned

income credit if the taxpayer has a qualifying child or if the

taxpayer, among other things, has earned income for the year of

$11,750 or less.   See Rev. Proc. 2004-71, sec. 3.06, 2004-2 C.B.

970, 973.
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     Neither J.S. nor K.M. qualifies as a qualifying child for

petitioner under section 32(c)(3), see sec. 152(c)(1)(A), (2),2

and petitioner earned more than $11,750.

     Petitioner is not entitled to the earned income credit for

2005.


Child Tax Credits

     Under section 24(a), a taxpayer may be entitled to a child

tax credit with respect to each qualifying child described in

section 152(c).   As we have held above, neither J.S. nor K.M.

qualifies as a qualifying child under that section.

     Petitioner is not entitled to child tax credits for 2005.

     To reflect the foregoing,


                                         Decision will be entered

                                   under Rule 155.




     2
        To qualify as a qualifying child under sec. 152(c), to
which sec. 32(c)(3) refers, an individual must be either a child
or descendant of the taxpayer, or a brother, sister, stepbrother,
or stepsister of the taxpayer or a descendant of any such
relative. Sec. 152(c)(1)(A), (2).
