                  T.C. Summary Opinion 2006-17



                     UNITED STATES TAX COURT



                 MARIA ROSA BLAND, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 7902-04S.             Filed January 31, 2006.


     Maria Rosa Bland, pro se.

     John D. Faucher, for respondent.



     GOLDBERG, 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 references are to the

Tax Court Rules of Practice and Procedure.
                                - 2 -

     Respondent determined a deficiency in petitioner’s Federal

income tax of $1,634 for the taxable year 2002.

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

entitled to claim a dependency exemption deduction for JM;1 and

(2) whether petitioner is entitled to an earned income credit

with JM as the qualifying child.

                             Background

     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 Sun

Valley, California, on the date the petition was filed in this

case.

     During taxable year 2002, petitioner was involved in a

romantic relationship with Orlando Martinez (Mr. Martinez).       In

fact, during taxable year 2002, petitioner and Mr. Martinez

became engaged to be married.

     In January of 2002, petitioner and her son, AM, from a

previous marriage, moved in with Mr. Martinez and his three

children from previous relationships.     One of Mr. Martinez’s

children, JM, is the child at issue in the present case.     In

September of 2002, petitioner, her son, Mr. Martinez, and his

children all moved into a larger residence.     They all continued

to live together for the remainder of the taxable year 2002.


     1
        The Court uses only the minor child’s initials.
                                 - 3 -

       During the year in issue and through the time of trial,

petitioner had not adopted JM, had not married Mr. Martinez, and

was not related to JM.    During the year in issue, JM was 11 years

old.

       During taxable year 2002, petitioner was an independent

sales director for Mary Kay, Inc.    Mary Kay, Inc. issued

petitioner a Form 1099-MISC, Miscellaneous Income, which

reflected “nonemployee compensation” of $25,765.25 and “other

income” of $3,758.81.

       Also, during taxable year 2002, Mr. Martinez was disabled

and received disability benefits of approximately $420 per month.

Mr. Martinez did not file a Federal income tax return for taxable

year 2002.

        On or about April 3, 2003, petitioner filed her Form 1040,

U.S. Individual Income Tax Return, for taxable year 2002.

Petitioner filed her 2002 Federal income tax return as a head-of-

household and claimed dependency exemption deductions for AM and

JM.    Petitioner also claimed an earned income credit with AM and

JM as the qualifying children.

       On March 18, 2004, respondent issued a notice of deficiency

denying petitioner (1) the claimed dependency exemption deduction

with respect to JM, and (2) the portion of the claimed earned

income credit with JM as the qualifying child.
                                - 4 -

                              Discussion

     In general, the Commissioner’s determination set forth in a

notice of deficiency is presumed correct.       Welch v. Helvering,

290 U.S. 111, 115 (1933).    In pertinent part, Rule 142(a)(1)

provides the general rule that “The burden of proof shall be upon

the petitioner”.    In certain circumstances, however, if the

taxpayer introduces credible evidence with respect to any factual

issue relevant to ascertaining the proper tax liability, section

7491 places the burden of proof on the Commissioner.       Sec.

7491(a)(1); Rule 142(a)(2).    Credible evidence is “‘the quality

of evidence which, after critical analysis, * * * [a] court would

find sufficient * * * to base a decision on the issue if no

contrary evidence were submitted’”.2       Baker v. Commissioner, 122

T.C. 143, 168 (2004) (quoting Higbee v. Commissioner, 116 T.C.

438, 442 (2001)).    Section 7491(a)(1) applies only if the

taxpayer complies with substantiation requirements, maintains all

required records, and cooperates with the Commissioner for

witnesses, information, documents, meetings, and interviews.

Sec. 7491(a)(2).    Although neither party alleges the

applicability of section 7491(a), we conclude that the burden of




     2
      We interpret the quoted language as requiring the
taxpayer’s evidence pertaining to any factual issue to be
evidence the Court would find sufficient upon which to base a
decision on the issue in favor of the taxpayer. See Bernardo v.
Commissioner, T.C. Memo. 2004-199.
                                - 5 -

proof has not shifted to respondent with respect to any of the

issues in the present case.

      Moreover, deductions are a matter of legislative grace and

are allowed only as specifically provided by statute.       INDOPCO,

Inc. v. Commissioner, 503 U.S. 79, 84 (1992); New Colonial Ice

Co. v. Helvering, 292 U.S. 435, 440 (1934).

1.   Deduction for Dependency Exemption

      Section 151 allows as a deduction an exemption for each

dependent of the taxpayer.    See sec. 151(c).    Section 152(a)

defines the term “dependent”, in pertinent part, to include “An

individual * * * who, for the taxable year of the taxpayer, has

as his principal place of abode the home of the taxpayer and is a

member of the taxpayer’s household”, provided that more than half

of the individual’s support, for the calendar year was received

from the taxpayer.   “Support” includes “food, shelter, clothing,

medical and dental care, education, and the like.”      Sec. 1.152-

1(a)(2)(i), Income Tax Regs.

      In determining whether an individual received more than one-

half of his or her 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.     Id.    In other words, the

support test requires the taxpayer to establish the total support

costs for the claimed individual and that the taxpayer provided
                                 - 6 -

more than half of that amount.     Archer v. Commissioner, 73 T.C.

963, 967 (1980); see Cotton v. Commissioner, T.C. Memo. 2000-333;

Gulvin v. Commissioner, T.C. Memo. 1980-111, affd. 644 F.2d 2

(5th Cir. 1981); Toponce v. Commissioner, T.C. Memo. 1968-101.       A

taxpayer who cannot establish the total amount of support costs

for the claimed individual generally may not claim that

individual as a dependent.   Blanco v. Commissioner, 56 T.C. 512,

514-515 (1971); Cotton v. Commissioner, supra.

     As previously stated, on her 2002 Federal income tax return

petitioner claimed a dependency exemption deduction for JM.

     During taxable year 2002, petitioner resided with Mr.

Martinez and JM.   Petitioner testified that she helped Mr.

Martinez support JM by paying for some clothing and food for JM.

Mr. Martinez corroborated petitioner’s testimony on this point.

Mr. Martinez further testified that he and petitioner split all

expenses which were incurred as a result of their cohabitation.

Additionally, Mr. Martinez testified that he solely supported his

other two children.

     We are convinced that, during 2002, petitioner helped

support JM.   Unfortunately, petitioner failed to provide the

Court with any specific testimony or documentary evidence as to

any specific amounts paid in support of JM during taxable year

2002.
                                 - 7 -

      On the basis of the record before us, we cannot find that

petitioner has established the total support costs for JM during

taxable year 2002, nor has she established that she provided more

than half of that amount.   Respondent’s determination on this

issue is sustained.

2.   Earned Income Credit

      As previously stated, petitioner claimed an earned income

credit for taxable year 2002 with AM and JM as the qualifying

children.   In the notice of deficiency, respondent disallowed the

portion of the earned income credit with respect to JM as the

qualifying child.

      Subject to certain limitations, an eligible individual is

allowed a credit which is calculated as a percentage of the

individual’s earned income.     Sec. 32(a)(1).    Earned income

includes wages.   Sec. 32(c)(2)(A).      Section 32(c)(1)(A)(i), in

pertinent part, defines an “eligible individual” as “any

individual who has a qualifying child for the taxable year”.       A

“qualifying child” is one who satisfies a relationship test, a

residency test, and an age test.     Sec. 32(c)(3).    The pertinent

parts of section 32(c)(3) provide:

      (3) Qualifying child.--

           (A) In general.--The term “qualifying child” means,
      with respect to any taxpayer for any taxable year, an
      individual--

                 (i) who bears a relationship to the taxpayer
            described in subparagraph (B),
                              - 8 -


               (ii) who has the same principal place of abode as
          the taxpayer for more than one-half of such taxable
          year, and

               (iii) who meets the age requirements of
          subparagraph (C).

          (B) Relationship test.--

               (i) In general.--An individual bears a
          relationship to the taxpayer described in this
          subparagraph if such individual is–-

                    (I) a son, daughter, stepson, or
               stepdaughter, or descendant of any such
               individual,

                    (II) a brother, sister, stepbrother, or
               stepsister, or a descendant of any such
               individual, who the taxpayer cares for as the
               taxpayer’s own child, or

                    (III) an eligible foster child of the
               taxpayer.

               *    *    *    *       *   *   *

               (iii) Eligible foster child.--For purposes of
          clause (i), the term “eligible foster child” means an
          individual not described in subclause (I) or (II) of
          clause (i) who–

                    (I) is placed with the taxpayer by an
               authorized placement agency, and

                    (II) the taxpayer cares for as the taxpayer’s
               own child.

     As previously stated, petitioner is not related to JM, she

has not adopted JM, and she has not married his father.    We find

that JM fails the relationship test of section 32(c)(3)(B);

therefore, we need not and do not decide whether he satisfies the

residency test of section 32(c)(3)(A)(ii).
                              - 9 -

     Accordingly, respondent’s determination on this issue is

sustained.

     Reviewed and adopted as the report of the Small Tax Case

Division.

                                      Decision will be entered

                              for respondent.
