                                 T.C. Memo. 2013-267



                         UNITED STATES TAX COURT



                    SIYAD A. JIBRIL, Petitioner v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent



      Docket No. 28216-11.                          Filed November 21, 2013.



      Siyad A. Jibril, pro se.

      Nick G. Nilan, for respondent.



            MEMORANDUM FINDINGS OF FACT AND OPINION


      VASQUEZ, Judge: Respondent determined a $4,362 deficiency in

petitioner’s Federal income tax for 2010. The issues for decision are: (1) whether

petitioner is entitled to dependency exemption deductions for his cousins Najmo

and Anas Muhumed; (2) whether petitioner is entitled to head of household filing

status; and (3) whether petitioner is entitled to an earned income credit.
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[*2]                           FINDINGS OF FACT

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

facts and the attached exhibits are incorporated herein by this reference. Petitioner

resided in the State of Washington at the time he filed the petition.

       Petitioner is an immigrant from Kenya and has lived in the United States

since 2007. He moved to Washington in May 2008. Osab Sahal is petitioner’s

aunt and the mother of two children: Anas Muhumed and Najmo Muhumed, who

are also petitioner’s cousins. Petitioner’s aunt and cousins emigrated from Kenya

to Arizona in April 2009. During 2010, the tax year in issue, Anas was 18 years

old and Najmo was 20, and both were enrolled in high school.

       In June 2009 petitioner moved to an apartment complex in Kent,

Washington, where he signed a one-year lease for apartment R102. In December

2009 petitioner purchased tickets to fly his aunt and cousins from Arizona to

Washington where they moved into petitioner’s apartment.

       The four lived together in apartment R102 until sometime in January 2010,

when petitioner’s aunt and cousins moved to another unit within the same

apartment complex--apartment W203. At the time, petitioner’s aunt and cousins

were relying in part on Washington State welfare benefits and had insufficient

income to qualify for an apartment on their own. Petitioner helped them qualify
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[*3] by cosigning the lease for apartment W203 and paying a portion of the

monthly rent.

      Throughout 2010 petitioner also supported his cousins in various other

ways. He paid Anas’ cell phone bill, purchased a car for his cousins’ use, and paid

the car insurance premiums. He also took his cousins shopping for school

clothing.

      When petitioner’s lease for apartment R102 expired in June 2010, he moved

out of his apartment and into apartment W203 with his aunt and cousins. They

lived together in apartment W203 until September 2010, when petitioner moved

from Kent to Seatac, Washington. Petitioner resided in Seatac for the remainder

of 2010 and was still living in Seatac at the time he filed the petition.

      Petitioner timely filed Form 1040, U.S. Individual Income Tax Return, for

2010 on which he reported $26,152 in wages and claimed dependency exemption

deductions for his cousins, head of household filing status, and a $2,925 earned

income credit.

                                      OPINION

I.    Burden of Proof

      Petitioner has neither claimed nor shown that he satisfied the requirements

of section 7491(a) to shift the burden of proof to respondent with regard to any
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[*4] factual issue.1 Accordingly, petitioner bears the burden of proof. See Rule

142(a).

II.   Dependency Exemption Deduction

      Section 151(a) and (c) allows taxpayers an annual exemption deduction for

each “dependent” as defined in section 152. A dependent is either a qualifying

child or a qualifying relative. Sec. 152(a). The requirement is disjunctive and,

accordingly, satisfaction of either the qualifying child requirement or the

qualifying relative requirement allows the individual to be claimed as a dependent.

      A.     Qualifying Child

      An individual must meet five requirements in order to qualify as a

taxpayer’s qualifying child. See sec. 152(c)(1)(A)-(E). The pertinent factor here

is the relationship requirement.

      A qualifying child must be the taxpayer’s child, brother, sister, stepbrother,

stepsister, or a descendant of any of them. Sec. 152(c)(1) and (2). A cousin,

however, does not fall within the list of relationships set out in section 152(c)(2).

Thus, neither of petitioner’s cousins is his qualifying child within the meaning of

section 152(c). See sec. 152(c)(1)(A).

      1
      Unless otherwise indicated, all section references are to the Internal
Revenue Code in effect for the year in issue, and all Rule references are to the Tax
Court Rules of Practice and Procedure.
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[*5] B.      Qualifying Relative

      An individual must meet four requirements in order to qualify as a

taxpayer’s qualifying relative. See sec. 152(d)(1)(A)-(D). The two pertinent

factors here are the relationship requirement and the support requirement.

      In order to satisfy the relationship requirement set out in section

152(d)(1)(A), an individual must bear a relationship to the taxpayer as specified in

section 152(d)(2). A cousin is not one of the specified relationships. See sec.

152(d)(2). However, petitioner’s cousins may still meet the relationship

requirement, under section 152(d)(2)(H), if either is “[a]n individual (other than an

individual who at any time during the taxable year was the spouse, determined

without regard to section 7703, of the taxpayer) who, for the taxable year of the

taxpayer, has the same principal place of abode as the taxpayer and is a member of

the taxpayer’s household.” In order for an individual to be considered a member

of a taxpayer’s household, both the taxpayer and the individual must occupy the

household for the entire taxable year. Sec. 1.152-1(b), Income Tax Regs.2




      2
       Although sec. 1.152-1, Income Tax Regs., has not been amended to reflect
changes in sec. 152 that were enacted by the Working Families Tax Relief Act of
2004, Pub. L. No. 108-311, sec. 201, 118 Stat. at 1169, we continue to rely on the
regulation to the extent it is not inconsistent with sec. 152, as amended. See, e.g.,
Gaitor v. Commissioner, T.C. Memo. 2010-70, 2010 WL 1407204, at *2 n.9.
                                         -6-

[*6] During 2010 petitioner and his cousins lived together in apartment R102 for

approximately one month, in separate apartments for four months, and together

again in apartment W203 for as many as four months. For the remaining three

months of the year, petitioner and his cousins lived in different towns. Although

the regulations do provide an exception for temporary absences due to special

circumstances, see id., there is no evidence in the record that petitioner’s move to

Seatac was a temporary absence.

       Petitioner did not occupy the same household as his cousins for the entire

taxable year. Therefore, his cousins do not meet the relationship requirement set

out in section 152(d)(1)(A). Consequently, they are not petitioner’s qualifying

relatives under section 152(d), regardless of the amount of support petitioner

provided to them.

       We find that petitioner’s cousins are neither his qualifying children nor his

qualifying relatives; therefore, petitioner is not entitled to a dependency exemption

deduction for either of them.

III.   Head of Household Filing Status

       As relevant here, section 2(b)(1) defines “head of household” as an

unmarried individual who maintains as his home a household that constitutes for

more than one-half of the taxable year the principal place of abode of either a
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[*7] qualifying child or any other dependent of the taxpayer if the taxpayer is

entitled to a deduction for the dependent under section 151. See sec. 2(b)(1). The

term “qualifying child”, for purposes of section 2(b)(1), means a qualifying child

as defined in section 152(c) without regard to section 152(e). Sec. 2(b)(1)(A)(i).

      We have already found that petitioner’s cousins are not his qualifying

children or dependents within the meaning of section 151(c),3 and petitioner has

not introduced any evidence to show that he lived with any other qualifying

children or dependents during 2010. Accordingly, petitioner is not entitled to file

as head of household for 2010. See sec. 2(b)(1)(A)(i).

IV.   Earned Income Credit

      Section 32(a) provides an earned income credit for an eligible individual for

so much of the taxpayer’s earned income for the taxable year as does not exceed

the earned income amount. To be entitled to an earned income credit for the 2010

tax year, a taxpayer’s earned income and adjusted gross income for the taxable

year must each be less than: (i) $40,363 with two or more qualifying children; (ii)

$35,535 with one qualifying child; or (iii) $13,460 with no qualifying children.

Sec. 32(b)(2), (j)(1); Rev. Proc. 2009-50, sec. 3.06, 2009-45 I.R.B. 617, 622. The

term “qualifying child”, for purposes of section 32, means a qualifying child

      3
          This remains true even without regard to sec. 152(e).
                                          -8-

[*8] as defined in section 152(c) without regard to section 152(c)(1)(D) and (e).

Sec. 32(c)(3)(A).

      As discussed supra, petitioner’s cousins are not his qualifying children.4

Thus, for purposes of section 32, petitioner does not have any qualifying children.

Petitioner reported earned income of $26,152 for 2010, see sec. 32(c)(2)(A)(i)

(defining earned income to include wages), which is greater than the phaseout

amount for a taxpayer with no qualifying children. Thus, petitioner is ineligible

for an earned income credit. Respondent’s determination is sustained.

      We are sympathetic to petitioner’s position. We also realize that the

statutory requirements may seem to work harsh results to taxpayers, such as

petitioner, who have provided significant support to family members but are

unable to claim dependency exemption deductions for them. However, we are

bound by the statute as written and the accompanying regulations when consistent

therewith. Michaels v. Commissioner, 87 T.C. 1412, 1417 (1986).




      4
          This remains true even without regard to sec. 152(c)(1)(D) and (e).
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[*9] To reflect the foregoing,


                                             Decision will be entered for

                                       respondent.
