                  T.C. Summary Opinion 2001-171



                     UNITED STATES TAX COURT



             WILLIAM A. CARCIERI, JR., Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 11775-00S.                  Filed October 25, 2001.


     William A. Carcieri, Jr., pro se.

     John Aletta, for respondent.




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

the provisions of section 7463 of the Internal Revenue Code in

effect at the time the petition was filed.    Unless otherwise

indicated, subsequent section references are to the Internal

Revenue Code in effect for the year in issue.    The decision to be

entered is not reviewable by any other court, and this opinion

should not be cited as authority.
                               - 2 -

     Respondent determined a deficiency in petitioner’s Federal

income tax of $1,654 for the taxable year 1998.     The issues for

decision are: (1) Whether petitioner is entitled to claim a

dependency exemption deduction for his daughter; (2) whether

petitioner qualifies for head of household filing status; and (3)

whether petitioner is entitled to claim the child tax credit.

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

The stipulation of facts and the accompanying exhibits are

incorporated herein by reference.    At the time the petition was

filed, petitioner resided in Cranston, Rhode Island.

                            Background

     Petitioner married Lillian Macera in 1977.     They are the

parents of two children, Jason and Amanda.     Petitioner and Ms.

Macera divorced on March 16, 1993.     The divorce decree states

that the parents “shall enjoy joint custody and shared placement”

of the children while they remain minors.     In 1995, when Jason

attained the age of majority, petitioner sought modification of

the support arrangement.   Pursuant to court order, petitioner’s

child support obligation was reduced to $30 per week from $62 per

week.   No modification of the custody arrangement was made.

     In 1998, Amanda spent time at the homes of both petitioner

and Ms. Macera.   The result in this case turns on the amount of

time Amanda spent at the home of each parent.     In 1998, Amanda

was 16 years old.
                                - 3 -

     Petitioner timely filed his 1998 Federal income tax return

as head of household.    He reported adjusted gross income of

$43,737.    Petitioner claimed a dependency exemption deduction and

the child tax credit for Amanda treating her as his “qualifying

child”.    Respondent issued a notice of deficiency determining

that petitioner was not entitled to head of household filing

status, the dependency exemption deduction, or the child tax

credit because he failed to substantiate his claims.

                             Discussion

1.   Dependency Exemption Deduction

     Section 151(c) allows a taxpayer to deduct an exemption

amount for each "dependent" as defined in section 152.    Section

152(a) defines a dependent as a son or daughter of the taxpayer,

“over half of whose support, for the calendar year in which the

taxable year of the taxpayer begins, was received from the

taxpayer (or is treated under subsection (c) or (e) as received

from the taxpayer)”.    Section 152(e)(1), however, provides that
if a child receives over half of his support during the calendar

year from parents who are divorced under a decree of divorce and

if the child is in the custody of one or both of his parents for

more than half of the calendar year, then the child is treated

“as receiving over half of his support during the calendar year

from the parent having custody for a greater portion of the

calendar year” (custodial parent).
                                - 4 -

     The terms of the most recent divorce decree or subsequent

custody decree determine who has "custody" for purposes of

section 152(e).   Sec. 1.152-4(b), Income Tax Regs.    Where parents

have joint custody under the divorce decree, the regulations

further provide that custody "will be deemed to be with the

parent who, as between both parents, has the physical custody of

the child for the greater portion of the calendar year."     Id.

“For a parent to be considered as having ‘physical custody’, the

child, generally, must reside with the parent.”     Condello v.

Commissioner, T.C. Memo. 1998-333 (citing White v. Commissioner,

T.C. Memo. 1996-438;    Whitaker v. Commissioner, T.C. Memo. 1988-

418).   Section 152(e)(2) provides that the custodial parent may

waive the right to claim the dependency exemption deduction,

allowing the noncustodial parent to claim the dependency

exemption deduction on his Federal income tax return.     In this

case, however, both parents claimed a dependency exemption

deduction on their 1998 Federal income tax returns.

     The factual dispute revolves around whether petitioner or

Ms. Macera had custody of Amanda for a greater portion of the

calendar year 1998.    Petitioner testified that he and Ms. Macera

had shared custody of Amanda in 1998, but that Amanda lived with

him from January 1 until the “middle of June” 1998.     Petitioner,

however, testified that Amanda stayed with him only “Monday,

Tuesday, Wednesday of one week, and * * * Thursday, Friday,

Saturday, Sunday of the next week.”     Petitioner testified that
                                 - 5 -

Amanda lived with Ms. Macera during the time she did not stay

with him.

     Amanda also attended high school in the Johnston school

district, where Ms. Macera resided.      Petitioner testified that

Amanda wanted to attend school in Cranston, but a local court

ruled that the proper place for her to attend school was the

schools in Johnston.   Petitioner further testified that his

mother, who lived across the street from him, would drive Amanda

to school when she spent the night at his house.

     Ms. Macera testified that Amanda lived with her in Johnston,

Rhode Island, for all of 1998.    Ms. Macera testified that Amanda,

during the taxable year at issue, did not spend Monday, Tuesday,

and Wednesday of one week and Thursday through Sunday of the next

week in Cranston with petitioner.    Ms. Macera testified that the

only time Amanda spent with petitioner was an occasional weekend

visit where she also was able to see her grandmother.      According

to Ms. Macera, Amanda’s only extended stay with petitioner was a

2-week period in which she and Amanda had a disagreement;

otherwise there was no rotation between the parents.      Ms. Macera

also denied that Amanda was shuttled to high school by her

grandmother in 1998.   Rather, she testified, the only time

Amanda’s grandmother drove her to school was when the child

attended middle school.   Furthermore, respondent presented a

letter from Johnston High School, to which petitioner did not
                                - 6 -

object, stating that Amanda lived with her mother for the years

1996 through 1999.

     Upon the completion of Ms. Macera’s testimony, this Court

afforded petitioner the opportunity to cross-examine her about

her testimony.   Petitioner, however, stated: “Your Honor, I have

no questions”, choosing not to question Ms. Macera about her

contradictory testimony.   Petitioner’s failure to question Ms.

Macera’s testimony leads the Court to conclude that Amanda spent

little time residing at petitioner’s home and most of her time at

her mother’s house.   Even if we relied solely on petitioner’s

testimony, we would nonetheless find that petitioner did not have

custody of Amanda for a portion of the year greater than that of

Ms. Macera.

     Petitioner's situation falls squarely within the general

rule that the parent with custody of a child for the greater part

of the year is treated as having provided over half of that

child's support for the year.   Petitioner’s testimony proves that

he had custody of Amanda for a period of time shorter than that

of Ms. Macera.   Furthermore, Ms. Macera’s testimony that she had

custody of Amanda for the entire year remains uncontroverted.

Consequently, we find that petitioner did not have custody of

Amanda for the greater portion of the calendar year 1998.
                                - 7 -

     Accordingly, we sustain respondent's determination that

petitioner is not entitled to a dependency exemption deduction

for Amanda in 1998.

2.   Head of Household Filing Status

     Respondent determined petitioner’s filing status to be

single rather than head of household for 1998 because Amanda did

not reside with petitioner for more than one-half of the year.

     Section 1(b) imposes a special tax rate on individuals

filing as head of household.    As relevant herein, head of

household is defined in section 2(b) as an unmarried individual

who maintains his home as the principal place of abode for a son

or daughter for more than half of the taxable year.

     Petitioner has not demonstrated that he maintained such a

household.    Petitioner’s own testimony indicated that he failed

to maintain a principal place of abode for Amanda for more than

one-half of 1998: “From January 1st until [the middle of] June

1998."    To qualify, petitioner needed to prove, at a minimum,

that he provided the principal place of abode for Amanda from

January 1 until July 2, 1998.    He testified further that Amanda

did not stay at his house more than half of the week during that

period.    He acknowledged that during the periods of the year

where Amanda did not reside at his abode, she stayed with Ms.

Macera.    Furthermore, petitioner failed to present any evidence

in addition to his own testimony regarding his entitlement to
                                 - 8 -

head of household filing status.    Petitioner might have

corroborated his testimony, but he failed to do so.

     The evidence supplied by petitioner fails to establish that

he provided the principal place of abode for Amanda for more than

one-half of the year in issue.    Moreover, petitioner offered no

evidence to show that he paid more than one-half the cost of

maintaining a household.   See sec. 2(b)(1).      We thus hold that

petitioner is not entitled to head of household filing status.

3.   Child Tax Credit

     Respondent determined that petitioner was unable to claim

the child tax credit on his 1998 return because he was unable to

substantiate that Amanda was a “qualifying child” as defined in

section 151.

     In the taxable year 1998, for the first time, taxpayers with

one or more qualifying children were able to claim a tax credit

of $400 for each qualifying child.       Sec. 24(a).   Section 24(c)(1)

defines a “qualifying child” as any individual if:

     (A) the taxpayer is allowed a deduction under section
     151 with respect to such individual for the taxable year,
     (B) such individual has not attained the age of 17 as
     of the close of the calendar year in which the taxable
     year of the taxpayer begins, and
     (C) such individual bears a relationship to the
     taxpayer described in section 32(c)(3)(B). [Emphasis
     added.]

The plain language of section 24 establishes a three-pronged test

to determine whether a taxpayer has a qualifying child.       In

effect, if one of the qualifications is not met, the claimed
                                 - 9 -

child tax credit must be disallowed.       The first element of the

three-pronged test requires that to qualify for the child tax

credit, a taxpayer must have been allowed a deduction for that

child under section 151.   Sec. 24(c)(1)(A).

     Respondent determined that petitioner was not entitled to a

section 151 dependency exemption deduction for Amanda in 1998.

We have previously held that respondent’s determination regarding

the section 151 deduction was valid.       That holding is dispositive

of this issue, and, as a result, we sustain respondent’s

determination regarding the section 24 child tax credit and hold,

because of the plain language of the statute, that petitioner is

not eligible to claim the child tax credit.

     Reviewed and adopted as the report of the Small Tax Case

Division.

     To reflect the foregoing,

                                              Decision will be entered

                                         for respondent.
