                  T.C. Summary Opinion 2003-48



                      UNITED STATES TAX COURT



               CHRISTOPHER CHRISTIE, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent


     Docket No. 2427-02S.                 Filed May 6, 2003.


     Christopher Christie, pro se.

     John D. Faucher, for respondent.



     COUVILLION, Special Trial Judge:      This case was heard
                            1
pursuant to section 7463.       The decision to be entered is not

reviewable by any other court, and this opinion should not be

cited as authority.




1
     Unless otherwise indicated, all section references are to
the Internal Revenue Code in effect for the year at issue. All
Rule references are to the Tax Court Rules of Practice and
Procedure.
                               - 2 -


     Respondent determined a deficiency of $2,632 in petitioner's

Federal income tax for 2000.

     The issues for decision are: (1) Whether petitioner is

entitled to a dependency exemption deduction under section

151(c); (2) whether petitioner is entitled to head-of-household

filing status under section 2(b); and (3) whether petitioner is

entitled to the earned income credit under section 32(a).

     Some of the facts were stipulated, and those facts, with the

annexed exhibits, are so found and are incorporated herein by

reference.   At the time the petition was filed, petitioner's

legal residence was Houston, Texas.

     Petitioner was incarcerated in the Texas State prison system

at Amarillo, Texas, for 5-1/2 years.   He was released from

incarceration on or about June 27, 2000.   At that time,

petitioner moved in with his mother and an aunt who lived in a

home owned by them and 11 other brothers and sisters.   Petitioner

lived with them throughout the remainder of 2000.   Shortly after

his release from prison, petitioner began working for several of

his friends doing carpentry work.   They paid petitioner in cash

for his services, and no IRS Forms W-2, Wage and Tax Statement,

were issued to him at the end of 2000 with respect to the amounts

paid to him.   At trial, petitioner admitted earning between

$3,400 to $4,000 while he was so employed.   In September 2000,

petitioner began working for MHI Hotels LLC and earned $9,056.79
                                - 3 -


with this employer during the remainder of 2000.    This amount was

reflected on a Form W-2 issued to petitioner.

       Although petitioner previously had a common-law marriage, he

was not married during the year 2000.    However, petitioner claims

to have had a child in a relationship with a different woman and

offered into evidence a birth certificate for a female named La

Toya La'Que Johnson, who was born on October 4, 1980, and whose

mother is listed as Shirley Dianne Johnson.    The birth

certificate, however, does not list a father, although petitioner

claims he was the father of La Toya Johnson.    Petitioner was

never married to Shirley Dianne Johnson.

       Petitioner filed a Federal income tax return for 2000 on

which he reported the $9,057 wage and salary income earned from

MHI Hotels LLC.    He did not report the cash income he earned

doing carpentry work.    Petitioner claimed head-of-household

filing status and claimed a dependency exemption deduction for La

Toya Johnson.    The return shows a zero tax liability, Federal

income tax withheld of $966, and a claimed earned income credit

of $2,353, based upon La Toya Johnson as the qualifying child.

The tax withheld and the earned income credit totaled $3,319, all

of which was claimed as a refund.    Petitioner did not elect to

have that amount applied to his 2001 estimated Federal income

tax.
                              - 4 -


     In the notice of deficiency, respondent disallowed

petitioner's claimed dependency exemption, disallowed the earned

income credit, and determined that petitioner's filing status was

single rather than head-of-household.   Although respondent became

aware of petitioner's unreported cash income from petitioner's

admission at trial, respondent did not move to assert an

increased deficiency attributable to the unreported cash income

payments.

     The Court first addresses petitioner's entitlement to the
                                                              2
claimed dependency exemption deduction for La Toya Johnson.       The

Court assumes that La Toya Johnson was petitioner's child,

although the evidence for such a conclusion is not entirely

convincing.

     Section 151(c) allows taxpayers to deduct an annual

exemption amount for each dependent as defined in section 152.

Under section 152(a), the term "dependent" means certain



2
     At trial, respondent agreed that sec. 7491 is applicable in
this case because the audit of petitioner's Federal income tax
return commenced after July 22, 1998. Sec. 7491, in certain
instances, shifts the burden of proof from petitioner to
respondent. Rule 142(a). The Court concludes the burden of
proof did not shift to respondent because petitioner failed to
satisfy the conditions of sec. 7491. Specifically, petitioner
maintained no records to substantiate the claimed dependency
exemption and ignored all requests by respondent prior to trial
for such information. Petitioner's first meeting with counsel
for respondent was a belated appearance after the Court had
completed the call of the calendar at the commencement of the
trial session. Sec. 7491(a)(2).
                                   - 5 -


individuals over half of whose support was received from the

taxpayer during the taxable year in which such individuals are

claimed as dependents.    Eligible individuals who may be claimed

as dependents include, among others, a son or daughter of the

taxpayer.    See sec. 152(a)(1).

     Section 1.152-1(a)(2)(i), Income Tax Regs., provides that,

in determining whether an individual received over half of his

support from the taxpayer, "there shall be taken into account the

amount of support received from the taxpayer as compared to the

entire amount of support which the individual received from all

sources, including support which the individual himself

supplied."    In Blanco v. Commissioner, 56 T.C. 512, 514-515

(1971), this Court held that, in establishing that more than one-

half of a dependent's support has been provided, a prerequisite

to such a showing is the demonstration by competent evidence of

the total amount of the dependent's support from all sources for

that year.    If the amount of total support is not established and

cannot be reasonably inferred from competent evidence available

to the Court, it is not possible to conclude that the taxpayer

claiming the exemption provided more than one-half of the support

of the claimed dependent.

     Petitioner was incarcerated for the first 6 months of the

year 2000 and admitted he provided no support to La Toya Johnson

during that period.    After petitioner was released from
                                 - 6 -


incarceration and began residing with his mother and aunt,

Shirley Johnson and her child moved in with them.   Petitioner

acknowledged that Shirley Johnson held part-time jobs during that

period, although no evidence was presented as to the amount of

her earnings or other sources of support she may have had, nor

was any evidence presented to show what amounts petitioner

provided to his daughter for her support.   The home was not owned

by petitioner, although he claimed at trial that he paid the

utilities and the groceries for all the occupants of the home.

Petitioner, however, maintained no records to document the

amounts that were expended by him and, in particular, the amounts

spent for his daughter.   His mother and aunt were both receiving

retirement benefits and presumably shared in some of these

expenses.   On this record, the Court concludes that petitioner

failed to establish that he provided more than half of La Toya

Johnson's support during 2000.    Respondent is sustained on this

issue.

     The second issue is whether petitioner is entitled to head-

of-household filing status for the year at issue.   Section 2(b)

provides generally that an individual shall be considered a head-

of-household if, among other requisites not pertinent here, such

individual maintains as his home a household that constitutes for

more than one-half of such taxable year the principal place of
                                - 7 -


abode, as a member of such household, of an unmarried son or

daughter of the taxpayer.    See sec. 2(b)(1)(A)(i).

     The evidence fails to establish that petitioner maintained

as his home "a household" that constituted the principal place of

abode for La Toya Johnson.    Petitioner did not own the home where

he resided (for only half the year), and his claim to paying the

costs for utilities and food for maintenance of the household

does not satisfy the Court that petitioner "maintained" a

household during the year at issue.     Respondent, therefore, is

sustained in the disallowance of petitioner's claimed head-of-

household filing status.

     The final issue is petitioner's claim to the earned income

credit.   Section 32(a) provides for an earned income credit in

the case of an eligible individual.     Section 32(c)(1)(A), in

pertinent part, defines an "eligible individual" as an individual

who has a qualifying child for the taxable year.     Sec.

32(c)(1)(A)(i).   A qualifying child is one who satisfies a

relationship test, a residency test, an age test, and an

identification requirement.    See sec. 32(c)(3).   To satisfy the

age test, the qualifying child must not have attained the age of

19 as of the close of the calendar year in which the taxable year

of the taxpayer begins.    Sec. 32(c)(3)(C)(i).   Petitioner's

daughter, La Toya Johnson, attained age 20 on October 4, 2000.

Therefore, petitioner's daughter does not satisfy the age test
                                - 8 -


and, therefore, was not a qualifying child for purposes of the

earned income credit.    However, section 32(c)(1)(A)(ii) allows an

earned income credit to an "eligible individual" if such

individual does not have a qualifying child but satisfies the

following conditions:

     (1) Such individual's principal place of abode was in the

United States for more than one-half of the taxable year;

     (2) the individual had attained age 25 and not attained age

65 on or before the close of the taxable year; and

     (3) such individual was not a dependent for whom a deduction

is allowable under section 151 to another taxpayer for the

taxable year at issue.   Sec. 32(c)(1)(A)(ii)(I), (II), and (III).

     On this record, the Court is satisfied that petitioner was

at least 25 years of age and had not attained age 65 prior to

2000.   Accordingly, the Court holds that petitioner is entitled

to the earned income credit under section 32 as an eligible

individual with no qualifying children.      Sec. 32(b)(1)(A).

     Reviewed and adopted as the report of the Small Tax Case

Division.



                                             Decision will be entered

                                        under Rule 155.
