                  T.C. Summary Opinion 2009-129



                     UNITED STATES TAX COURT



                   DONALD ADDIE, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 7590-08S.              Filed August 25, 2009.



     Donald Addie, pro se.

     Katherine Lee Kosar, for respondent.



     ARMEN, Special Trial Judge:   This case was heard pursuant to

the provisions of section 7463 of the Internal Revenue Code in

effect when the petition was filed.1   Pursuant to section

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




     1
        Unless otherwise indicated, all subsequent section
references are to the Internal Revenue Code in effect for the
year in issue.
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other court, and this opinion shall not be treated as precedent

for any other case.

     Respondent issued a notice of deficiency disallowing, inter

alia, the earned income credit (EIC) claimed by petitioner,

thereby resulting in a deficiency of $1,950 in his Federal income

tax for 2006.   The issue for decision is whether petitioner had

two or no qualifying children during the taxable year.    At trial,

respondent conceded that if petitioner had no qualifying

children, then he is entitled to an EIC of $373.    Respondent

further conceded that the individuals with respect to whom

petitioner claimed the EIC satisfied the requisite relationship

and age tests for a qualifying child.    Thus, the only issue

remaining for decision is whether the individuals met the

residency test; specifically, whether petitioner’s children had

the same principal place of abode as petitioner for more than

one-half of the taxable year.   We find that the children met the

residency test and hold that petitioner is therefore entitled to

the EIC as claimed by him on his return.

                            Background

     Some of the facts have been stipulated, and they are so

found.   We incorporate by reference the parties’ stipulation of

facts and accompanying exhibits.

     Petitioner resided in the State of Ohio when the petition

was filed.
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     Petitioner claimed on his 2006 Federal income tax return,

inter alia, an EIC for his two children.

     Petitioner and the children’s mother were never married and

parted ways in 1999 at which time they entered into a Mediation

Agreement (Agreement).   Pursuant to the Agreement, the children’s

mother was the residential parent and petitioner was the

nonresidential parent.   The Agreement further designated that

petitioner would share the second and third weekend of each month

with the children, picking them up from their mother on Saturday

morning and returning them to their mother on Sunday evening.

For the first part of 2006, petitioner’s children resided

primarily with their mother in accordance with this agreement.

     However, during the latter part of June 2006, petitioner’s

children and their mother moved in with petitioner due to an

injury to the mother’s back.   The children and their mother

continued to live with petitioner for the remainder of the year.

                             Discussion

     Section 32(a)(1) permits an eligible individual an EIC

against that individual’s tax liability.   As pertinent here, the

term “eligible individual” is defined to mean “any individual who

has a qualifying child for the taxable year, or * * * any other

individual who does not have a qualifying child for the taxable

year”.   Sec. 32(c)(1)(A).   The amount of the credit is determined

according to percentages that vary depending on whether the
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taxpayer has one qualifying child, two or more qualifying

children, or no qualifying children.       Sec. 32(b).     The

percentages increase if a taxpayer has two qualifying children,

as opposed to one or none.   Id.    Thus, if petitioner has two

qualifying children, the EIC is $1,950; but if he has no

qualifying children, the EIC is only $373.

     To be eligible to claim an EIC with respect to a “qualifying

child”, a taxpayer must establish, inter alia, that the child had

the same principal place of abode as the taxpayer for more than

one-half of the taxable year.    Secs. 32(c)(3), 152(c)(1)(B).

     Because petitioner’s children commenced their stay with

petitioner near the end of June and resided with petitioner for

the rest of the year, the residency test of section 152(c)(1)(B)

has been satisfied.   Therefore, petitioner is entitled to the EIC

he claimed on his 2006 Federal income tax return.

     To reflect the foregoing,


                                              Decision will be entered

                                         for petitioner.
