                  T.C. Summary Opinion 2002-74



                     UNITED STATES TAX COURT



           AUSTIN EUGENE CHANDLER, JR., Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 13390-00S.             Filed June 20, 2002.



     Austin Eugene Chandler, Jr., pro se.

     Lindsey D. Stellwagen, for respondent.



     PANUTHOS, Chief 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.    The

decision to be entered is not reviewable by any other court, and

this opinion should not be cited as authority.    Unless otherwise

indicated, subsequent section references are to the Internal

Revenue Code in effect for the year in issue, and all Rule
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references are to the Tax Court Rules of Practice and Procedure.

     Respondent determined a deficiency of $2,543 in petitioner’s

Federal income tax for the taxable year 1999.1   After concessions

by respondent,2 the issue for decision is whether petitioner is

entitled to an earned income credit (EIC).

     Petitioner resided in Alexandria, Virginia, at the time he

filed his petition.

Background

     During 1999, the tax year at issue, petitioner lived and

worked in New Jersey.   Petitioner’s 9-year-old daughter, Kenesha

Dudley (Kenesha), lived with her mother, Yonetta Dudley (Ms.

Dudley), in Washington, D.C., until May 1999.    In May 1999,

Kenesha moved to Alexandria, Virginia, to live with her

grandmother, Clarice Chandler (Mrs. Chandler).    On weekends

petitioner would travel from New Jersey to Virginia to visit

Kenesha.   Petitioner paid Mrs. Chandler $200 per week for room

and board for Kenesha and for himself.   Kenesha lived with

petitioner in New Jersey when she was on vacation from school.



     1
        Petitioner was entitled to a refund of $2,621 in 1999;
however, the deficiency resulting from respondent’s denial of the
claimed EIC reduced the refund to $309.
     2
        Respondent conceded that: Petitioner is entitled to the
claimed dependency exemption deduction; the resolution of
petitioner’s proper filing status has no income tax consequences
and, therefore, is moot; and petitioner may be entitled to an EIC
based upon a modified adjusted gross income of $8,589 as an
individual with no qualifying children.
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       Respondent asserts that petitioner is not entitled to the

claimed EIC with respect to a qualifying child because during the

tax year Kenesha was living in the same household as Mrs.

Chandler, whose modified adjusted gross income was greater than

petitioner’s.       A transcript of account for the tax year 1999

reflects Mrs. Chandler’s modified gross income of $60,327.

Discussion

       The burden of proof is on petitioner.       Rule 142(a)(1).3

       Section 32(a) provides that an “eligible individual” may be

allowed an EIC equal to the credit percentage as provided in

section 32(b).       The term “eligible individual” includes a

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

32(c)(1)(A)(i).

       A “qualifying child” includes a child who satisfies a

relationship test to the taxpayer, has the same principal place

of abode as the taxpayer for more than one-half of the taxable

year, and has not attained age 19.         Sec. 32(c)(3)(A), (B), and

(C).       The relationship test is satisfied if the qualifying child

is a daughter of the taxpayer or a descendant of the taxpayer.

Sec. 32(c)(3)(B)(i)(I).



       3
        Sec. 7491 does not apply to shift the burden of proof to
respondent because petitioner has neither alleged that sec. 7491
is applicable nor established that he complied with the
requirements of sec. 7491(a)(2)(A) and (B) to substantiate items,
maintain required records, and fully cooperate with respondent’s
reasonable requests.
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     The taxpayer must have identified the child on his return

under the identification rule of section 32(c)(3)(D) but need not

have so identified the child to be an eligible individual with

respect to that qualifying child.      Sutherland v. Commissioner,

T.C. Memo. 2001-8.

     Under section 32(c)(1)(C), the so-called tie-breaker rule,

if there are two or more eligible individuals who could receive

the EIC with respect to the same qualifying child, only the

individual with the highest modified adjusted gross income, as

defined under section 32(c)(5), for such taxable year shall be

treated as the eligible individual with respect to the qualifying

child.   Sutherland v. Commissioner, supra; Jackson v.

Commissioner, T.C. Memo. 1996-54.

     The term “eligible individual” also includes an individual

without a qualifying child if the individual’s principal place of

abode is in the United States for more than one-half of the

taxable year, the individual has attained age 25 but not age 65,

and the individual is not a dependent of another for whom a

deduction is allowable under section 151.     Sec. 32(c)(1)(A)(ii).

An eligible individual without a qualifying child may be eligible

for an EIC if the individual earned income or modified adjusted

gross income does not exceed the completed phaseout amount, which

was $10,200 for the 1999 taxable year.     Sec. 32(a), (b), and

(c)(1)(A)(ii); Rev. Proc. 98-61, 1998-2 C.B. 811, 814.
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     Except for temporary absences during vacation from school,

Kenesha lived in her grandmother’s house in Virginia as of May

1999 and for the remainder of 1999.    We find that Kenesha’s

principal place of abode was Mrs. Chandler’s house in Virginia.

Although petitioner visited Kenesha in Virginia on weekends, we

find that his principal place of abode was in New Jersey.

Therefore, petitioner did not have the same principal place of

abode as Kenesha for more than one-half of 1999.    Sec.

32(c)(3)(A)(ii).   Kenesha, therefore, is not a qualifying child

with respect to petitioner under section 32(c)(3)(A), and

petitioner is not an eligible individual who has a qualifying

child under section 32(c)(1)(A)(i).    Since petitioner does not

meet some of the aforementioned requirements, we need not address

the applicability of the tie-breaker rule under section

32(c)(1)(C).

     However, petitioner satisfies the residency, age, and

dependency requirements of an eligible individual under section

32(c)(1)(A)(ii).   Petitioner’s 1999 modified adjusted gross

income and earned income were $8,589, which is less than the

completed phaseout amount for 1999 of $10,200.    Sec. 32(b); Rev.

Proc. 98-61, 1998-2 C.B. at 814.   Therefore, we conclude that

petitioner is entitled to an EIC in an amount determined by using

the applicable credit percentage for an individual with no

qualifying children under section 32(b).
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    Reviewed and adopted as the report of the Small Tax Case

Division.

    To reflect the foregoing,

                                        Decision will be entered

                                under Rule 155.
