                  T.C. Summary Opinion 2003-143



                      UNITED STATES TAX COURT



                  MAMADY B. CISSE, Petitioner v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 11619-02S.           Filed October 1, 2003.


     Mamady B. Cisse, pro se.

     Timothy F. Salel, for respondent.



     PAJAK, 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.   Unless otherwise

indicated, section references are to the Internal Revenue Code in

effect for the year in issue.   The decision to be entered is not

reviewable by any other court, and this opinion should not be

cited as authority.

     Respondent determined a deficiency of $3,137 in petitioner’s
                                 - 2 -

2000 Federal income tax.    After concessions by respondent, this

Court must decide whether petitioner is entitled to claim the

earned income credit even though the alleged qualifying child has

a Social Security card that is stamped “NOT VALID FOR

EMPLOYMENT”.

     Some of the facts in this case have been stipulated and are

so found.    Petitioner resided in San Diego, California, at the

time he filed his petition.    Section 7491 does not apply because

this case involves a legal issue.

     On petitioner’s 2000 Form 1040, U.S. Individual Income Tax

Return, petitioner claimed the earned income credit.    Petitioner

claimed his nephew, Mohamed Toure (Mohamed), as a qualifying

child.   Mohamed was born on April 3, 1997, to Mawa Cisse,

petitioner’s sister, and Ibrahima Toure.    Mohamed was born in

Senegal.    He is a resident alien in the United States.

Respondent determined that petitioner did not have a qualifying

child and disallowed the earned income credit.

     Mohamed’s Social Security card is stamped “NOT VALID FOR

EMPLOYMENT”.    Respondent’s position is that this disqualifies

Mohamed as a qualifying child.

     Section 32 generally provides that an eligible individual

may qualify for an earned income credit.    A taxpayer who has a

“qualifying child” may be an eligible individual for the earned

income credit.    Sec. 32(c)(1)(A)(i).
                                - 3 -

     A “qualifying child” is an individual who satisfies a

relationship test, a residency test, an age test, and for whom

the taxpayer satisfies an identification requirement.   Sec.

32(c)(3); Wooten v. Commissioner, T.C. Memo. 2000-54.     In this

case, the identification number requirement is the only

requirement that the parties disputed.

     The identification number requirement is set forth in

section 32(c)(3)(D)(i), which provides that a qualifying child

“shall not be taken into account under subsection (b) unless the

taxpayer includes the name, age and TIN [Taxpayer Identification

Number] of the qualifying child on the return of tax for the

taxable year.”

     Section 32(m) defines the term “TIN”, as used in section

32(c)(3)(D)(i), as “a social security number issued to an

individual by the Social Security Administration (other than a

social security number issued pursuant to clause (II)(or that

portion of clause (III) that relates to clause (II)) of section

205(c)(2)(B)(i) of the Social Security Act).”

     Section 205(c) of the Social Security Act is codified in 42

U.S.C. section 405(c) (2003).   Clause I of 42 U.S.C. section

405(c)(2)(B)(i) pertains to aliens lawfully admitted to the

United States who are entitled to engage in employment in the

United States.   Clause II of 42 U.S.C. section 405(c)(2)(B)(i)

pertains to individuals who apply for or receive benefits fully
                                  - 4 -

or partially funded with Federal funds, including any child on

whose behalf benefits are claimed by another person.         Clause III

is not relevant.

     Because Mohamed’s Social Security card is stamped “NOT VALID

FOR EMPLOYMENT” above the Social Security number, Mohamed is not

encompassed by Clause I of 42 U.S.C. section 405(c)(2)(B)(i).

Accordingly, he is covered by Clause II of 42 U.S.C. section

405(c)(2)(B)(i).    As a result, Mohamed does not have a “TIN” as

defined in section 32(m) and therefore does not meet the

identification number requirement in section 32(c)(3)(D).

Accordingly, we find that Mohamed is not a qualifying child under

section 32(c)(3), and that petitioner is not entitled to claim

the earned income credit at issue.

     Reviewed and adopted as the report of the Small Tax Case

Division.

                                               Decision will be entered

                                          under Rule 155.



Reporter’s Note: This report was modified by Order dated October 3, 2003.
