                    T.C. Summary Opinion 2010-9



                      UNITED STATES TAX COURT



                   BARRY MAMOUDOU, Petitioner v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 28939-08S.             Filed January 26, 2010.



     Christopher Duling, for petitioner.

     Jack T. Anagnostis, for respondent.



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

the provisions of section 7463 of the Internal Revenue Code in

effect when the petition was filed.   Pursuant to section 7463(b),

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

and this opinion shall not be treated as precedent for any other

case.   Unless otherwise indicated, subsequent section references

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

and Procedure.

     Respondent determined a deficiency of $5,069.75 in

petitioner’s 2007 Federal income tax.    The issue for decision is

whether petitioner is entitled to dependency exemption deductions

for the two children claimed on his 2007 Federal income tax

return.

                            Background

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

The stipulation of facts and the attached exhibits are

incorporated herein by reference.   When petitioner filed his

petition, he resided in Pennsylvania.

     Petitioner timely filed his Federal income tax return for

2007 as a head of household.   On his return he claimed:   (1) Two

dependency exemption deductions; (2) the earned income tax

credit; and (3) a child tax credit and an additional child tax

credit.   Respondent issued to petitioner a notice of deficiency

changing petitioner’s filing status to single and disallowing the

claimed deductions and credits.1

     In 2007 petitioner lived with the mother of the two children

he claimed as dependents on his 2007 Federal income tax return.




     1
      At trial petitioner conceded that he is not entitled to
head of household filing status, the earned income tax credit, or
the child tax credit and additional child tax credit.
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He was not the biological father of the children, nor was he

married to their mother.

                              Discussion

I.    Burden of Proof

       Generally, the Commissioner’s determinations are presumed

correct, and the taxpayer bears the burden of proving that those

determinations are erroneous.2    Rule 142(a); see INDOPCO, Inc. v.

Commissioner, 503 U.S. 79, 84 (1992); Welch v. Helvering, 290

U.S. 111, 115 (1933).

       Deductions and credits are a matter of legislative grace,

and the taxpayer bears the burden of proving that he or she is

entitled to any deduction or credit claimed.    Rule 142(a); Deputy

v. du Pont, 308 U.S. 488, 493 (1940); New Colonial Ice Co. v.

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

II.    Dependency Exemption Deduction

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

“exemption amount for each individual who is a dependent (as

defined in section 152) of the taxpayer for the taxable year.”

Section 152(a) defines dependent as a “qualifying child” or a

“qualifying relative.”     Petitioner is not related to the children

and they are not his qualifying children; however, he contends



       2
      Petitioner has not claimed or shown that he meets the
requirements under sec. 7491(a) to shift the burden of proof to
respondent as to any factual issue relating to his liability for
tax.
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that the children are his qualifying relatives under section

152(d).

     In pertinent part, section 152(d) provides that an

individual is a qualifying relative of the taxpayer if:      (1) That

individual has the same principal place of abode as the taxpayer

and is a member of the taxpayer’s household; (2) the taxpayer

provides over one-half of the individual’s support for that year;

and (3) that individual is not the qualifying child of the

taxpayer or of any other taxpayer for that year.      Sec. 152(d)(1)

and (2)(H).   Respondent stipulates that the children lived with

petitioner during the year and that the children did not earn

income in 2007.

     Petitioner’s girlfriend, who is the mother of the children

and with whom petitioner lived in 2007, was entitled to claim the

children as her qualifying children in 2007.      See sec. 152(c)(1).

Accordingly, these children are not petitioner’s qualifying

relatives for 2007, and respondent’s determination is sustained.

See sec. 152(d)(1)(D).

     To reflect the foregoing,


                                              Decision will be entered

                                         for respondent.
