                  T.C. Summary Opinion 2003-102



                     UNITED STATES TAX COURT



                MENACE ST. HILAIRE, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 776-02S.              Filed July 24, 2003.


     Menace St. Hilaire, pro se.

     Monica J. Miller, for respondent.



     POWELL, Special Trial Judge:   This case was heard pursuant

to the provisions of section 74631 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.


1
   Unless otherwise indicated, subsequent 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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     Respondent determined a deficiency of $2,288 in petitioner’s

2000 Federal income tax.    The issues are whether petitioner is

entitled to (1) a dependency exemption deduction for his minor

son, (2) a child care credit under section 21 for his son, (3) a

child tax credit (CTC) under section 24 for his son, (4) an

earned income credit (EIC) for his son, and (5) head of household

filing status.    Petitioner resided in Orlando, Florida, at the

time the petition was filed.

     The facts may be summarized as follows.    Petitioner and his

wife, Camelite, were married in 1992.    They have three children

including a son, Mackcande.    Mackcande was 7 years old in 2000.

During 1998 petitioner and his wife lived together, and they

filed a joint Federal income tax return for that year.

Petitioner’s testimony at to where they lived at that time is

contradictory.

     In July 1999, petitioner and his son allegedly rented one

room in an apartment that his wife owned at 421 Jernigan Avenue,

Orlando, Florida.    The remainder of the apartment was rented to

another family.    Petitioner’s wife and the two other children

allegedly lived at 5394 Botany Court in Orlando.    Mackcande’s

school records and Camelite’s driver’s license and motor vehicle

registration, however, show that she lived at 421 Jernigan

Avenue.   Although, again, petitioner’s testimony is unclear, as

we understand, Camelite prepared meals for petitioner and
                                 - 3 -

Mackcande, and at night they returned to 421 Jernigan Avenue to

sleep.   Petitioner paid for most of the expenses of maintaining

the residence at 5394 Botany Court.      Petitioner and Camelite were

not legally separated pursuant to a decree of divorce or legal

separation.

     In preparing his 2000 Federal income tax return, petitioner

claimed, with respect to Mackcande, a dependency exemption

deduction, an EIC, a child care credit based on amounts he

allegedly paid to Camelite for taking care of Mackcande, a CTC,

and used the head of household filing status.     Respondent

disallowed the dependency exemption deduction, the EIC, the child

care credit, and the CTC.   Respondent also determined that

petitioner’s proper filing status was married filing separately.

Petitioner testified that Camelite would not file a joint return

because she would not get a tax refund.

Dependency Exemption Deduction

     Petitioner argues that he is entitled to claim a dependency

exemption deduction with respect to Mackcande.     Sections 151 and

152 provide that a taxpayer is entitled to deduct an exemption

for a minor dependent if the taxpayer provides more than half of

the support for the minor dependent.     A son of a taxpayer is

included in the definition of a dependent.     Sec. 152(a)(1).    The

sole issue with regard to the dependency exemption deduction

claimed by petitioner is whether petitioner has established that
                               - 4 -

he provided more than half of the support for Mackcande.      It is

unclear whether respondent still contends that petitioner is not

entitled to the dependency exemption deduction; we are satisfied,

however, that petitioner provided more than half of the support

for Mackcande.   Accordingly, petitioner is entitled to a

dependency exemption deduction for Mackcande.

CTC

      Section 24 provides a CTC for a qualifying child.   A

qualifying child includes an individual, under the age of 17, for

whom the taxpayer is allowed to claim a deduction under section

151 and who bears a relationship to the taxpayer as described in

section 32(c)(3)(B).   Sec. 24(c)(1).   Petitioner claimed the CTC

for Mackcande as a qualifying child.    Respondent agrees that

Mackcande is a qualifying child if petitioner can claim a

dependency exemption deduction for him under section 151.     As

discussed above, petitioner is entitled to claim Mackcande as a

dependent and, therefore, is also entitled to a CTC under section

24.

Child Care Credit

      Section 21 provides for a credit for a percentage of the

expenses for the care of a child under age 13 paid by an

individual to enable the individual to be gainfully employed.

Section 21(e)(2) provides that if an individual is married at the

end of the taxable year, the individual and his spouse must file
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a joint return in order to be entitled to the credit.     “An

individual legally separated from his spouse under a decree of

divorce or of separate maintenance shall not be considered as

married.”   Sec. 21(e)(3).    Putting aside the fact that petitioner

did not substantiate any child care expenses, for the reasons

stated below, we hold that petitioner was married during the

taxable year 2000, did not file a joint return with his wife,

and, accordingly, is not entitled to claim a child care credit.

EIC

      Section 32(a) generally provides eligible individuals with

an EIC against their income tax liability.     An “eligible

individual” is defined as any individual who has a “qualifying

child”.   Sec. 32(c)(1)(A)(i).    A qualifying child includes a son

of the taxpayer, sec. 32(c)(3)(B)(i)(I), who has the “same

principal place of abode as the taxpayer for more than one-half

of such taxable year”, sec. 32(c)(3)(A)(ii).     Respondent concedes

that petitioner satisfies these requirements.     Section 32(d)

provides, however, that:     “In the case of an individual who is

married (within the meaning of section 7703), this section shall

apply only if a joint return is filed for the taxable year under

section 6013.”   Again, as discussed below, we find that

petitioner was married during the taxable year 2000, and, since

he and his wife did not file a joint return, petitioner is not

entitled to claim an EIC.
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Head of Household Filing Status

      Petitioner claims that he maintained, as his household, the

principal place of abode of Mackcande, and, therefore, is

entitled to use the head of household filing status.     Section

2(b) provides the requirements for head of household filing

status.   To qualify as a head of a household a taxpayer must be

unmarried at the end of the taxable year.     Sec. 2(b)(1).   For the

reasons discussed below, we find that petitioner was married at

the end of the taxable year and is not entitled to use the head

of household filing status.

Petitioner’s Marital Status

     Petitioner’s eligibility to claim the child care credit,

EIC, and head of household filing status depends on whether he is

treated as being unmarried.    Section 7703(a) provides that an

individual’s marital status shall be determined at the end of the

taxable year and “an individual legally separated from his spouse

under a decree of divorce or of separate maintenance shall not be

considered as married.”    Sec. 7703(a)(2).   Petitioner does not

meet this requirement.    Section 7703(b) provides, in pertinent

part, that if

                (1) an individual who is married * * * and who
           files a separate return maintains as his home a
           household which constitutes for more than one-half of
           the taxable year the principal place of abode of a
           child * * * with respect to whom such individual is
           entitled to a deduction for the taxable year under
           section 151 * * *,
                               - 7 -

               (2) such individual furnishes over one-half of the
          cost of maintaining such household during the taxable
          year, and

               (3) during the last 6 months of the taxable year,
          such individual’s spouse is not a member of such
          household,

     such individual shall not be considered as married.

These requirements are stated in the conjunctive, and the

requirements of each paragraph must be satisfied.   We are willing

to assume, but do not decide, that petitioner satisfies the

requirements of paragraphs (1) and (2).    We find, however, that

petitioner’s wife was a member of his household.2   Regardless of

what the sleeping arrangements may have been and where the

household was, petitioner’s wife, Camelite, was very much a part

of his household.   By his own testimony, petitioner paid

virtually all of the expenses for his family.    Camelite prepared

meals for the family, and, it appears to us, shared with

petitioner the raising of all three children.    We conclude that

she and petitioner shared the same household.

       We have seen an increasing number of cases where there

have been alleged convoluted living arrangements that have no

discernable substance except for attempts to take advantage of

tax deductions and credits.   Often this results from advice given

by tax return preparers who know better.    This is a dangerous

2
   Sec. 7491 dealing with the burden of proof has no application
to this case because petitioner has not satisfied the
requirements of sec. 7491(a).
                               - 8 -

game, and we urge such taxpayers and their return preparers to be

more circumspect.   Not only do the taxpayers end up paying

interest for the current year, they may be subject to penalties

or the denial of otherwise allowable credits in future years.

See sec. 32(k).

     Reviewed and adopted as the report of the Small Tax Case

Division.

                                            Decision will be entered

                                       under Rule 155.
