                         T.C. Memo. 2011-199



                       UNITED STATES TAX COURT



                   JASON E. PHILLIPS, Petitioner v.
             COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 3108-10.                Filed August 16, 2011.



     Jason E. Phillips, pro se.

     Brett Chmielewski, Eric R. Skinner, and Louis F. Meizlish

(student), for respondent.



               MEMORANDUM FINDINGS OF FACT AND OPINION


     CHIECHI, Judge:    Respondent determined a deficiency in

petitioner’s Federal income tax (tax) for his taxable year 2007

of $3,007.
                                - 2 -

       The issues for decision for petitioner’s taxable year 2007

are:

       (1) Is petitioner entitled under section 151(a)1 to depend-

ency exemption deductions for his two children, EP and RP?      We

hold that he is not.

       (2) Is petitioner entitled to the child tax credit under

section 24(a) with respect to EP and RP?     We hold that he is not.

       (3) Is petitioner entitled to the additional child tax

credit under section 24(d) with respect to EP and RP?    We hold

that he is not.

                          FINDINGS OF FACT

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

       Petitioner resided in Michigan at the time he filed the

petition.

       At a time not disclosed by the record, petitioner married

Lindsay M. Schouw (Ms. Schouw).    They have two children, EP and

RP.    (We shall sometimes refer collectively to EP and RP as the

children.)

       On June 29, 2005, petitioner and Ms. Schouw divorced.

Pursuant to the judgment of divorce (divorce judgment) that the

Family Division of the Circuit Court for the County of Clinton

(Clinton Circuit Court) entered, petitioner and Ms. Schouw were


       1
      All section references are to the Internal Revenue Code in
effect for the year at issue. All Rule references are to the Tax
Court Rules of Practice and Procedure.
                              - 3 -

awarded joint legal custody of EP and RP.    Ms. Schouw was awarded

“physical custody” of them, and petitioner was entitled to

“reasonable and liberal parenting time”.    The divorce judgment

also provided in pertinent part:

                             SUPPORT

          IT IS FURTHER ORDERED AND ADJUDGED that Defendant,
     Jason Phillips [petitioner], shall pay to the State of
     Michigan Disbursement Unit for remittance to Plaintiff
     [Ms. Schouw] for the support of the minor children [EP
     and RP], monthly support as follows which includes
     $22.00 monthly child care costs and $36.00 monthly for
     ordinary health care when there are two [minor] chil-
     dren; and $22.00 per month child care costs and $18.00
     per month ordinary health care when there is one [mi-
     nor] child:

          $726.00 per month for two [minor] children
          $452.00 per month when one [minor] child remains

     On November 29, 2006, the Clinton Circuit Court entered an

order regarding parenting time (parenting-time order), the terms

of which petitioner and Ms. Schouw had previously stipulated.

That order provided that petitioner was to “continue to have

reasonable and liberal parenting time” with EP and RP and that

the “Parties [petitioner and Ms. Schouw] will change the alter-

nate weekend schedule after the start of 2007, and the change

will take place by father having two weekends in a row, and the

parties alternating weekends thereafter.”    The parenting-time

order did not modify the provision in the divorce judgment with

respect to support.
                                 - 4 -

     As of the end of 2007, both EP and RP were under the age of

19, and neither of them provided over one-half of his own support

for that year.   Each of EP and RP spent more than one-half of the

nights during 2007 with Ms. Schouw and less than one-half of

those nights with petitioner.2

     Ms. Schouw did not at any time waive her right to claim

dependency exemption deductions for EP and RP for her taxable

year 2007.

     Petitioner timely filed Form 1040, U.S. Individual Income

Tax Return, for his taxable year 2007 (2007 return).     In that

return, petitioner claimed with respect to his children, EP and

RP, (1) dependency exemption deductions, (2) the child tax

credit, and (3) the additional child tax credit.     Petitioner did

not attach to his 2007 return a written declaration that Ms.

Schouw signed in which she waived her right to claim dependency

exemption deductions for EP and RP.

     Respondent issued to petitioner a notice of deficiency

(notice) for his taxable year 2007.      In that notice, respondent

determined, inter alia, that petitioner is not entitled to

(1) dependency exemption deductions, (2) the child tax credit,



     2
      Petitioner and Ms. Schouw prepared separate summary docu-
ments setting forth their respective views regarding the nights
during 2007 which EP and RP spent with each of them. According
to petitioner, EP and RP spent 180 nights with him and 185 nights
with Ms. Schouw during 2007. According to Ms. Schouw, EP and RP
spent 177 nights with petitioner and 188 nights with her during
2007.
                              - 5 -

and (3) the additional child tax credit that he claimed with

respect to his children, EP and RP.

                             OPINION

     Petitioner has the burden of establishing that the determi-

nations in the notice are wrong.3   See Rule 142(a); Welch v.

Helvering, 290 U.S. 111, 115 (1933).

Dependency Exemption Deductions

     Section 151(a) provides that “the exemptions provided by

this section shall be allowed as deductions” to a taxpayer.

Section 151(c) provides an exemption for each dependent of the

taxpayer, as defined in section 152.

     Section 152(a) defines the term “dependent” to mean either a

qualifying child or a qualifying relative.

     Section 152(c) defines the term “qualifying child” as an

individual who satisfies (1) the relationship requirement in

section 152(c)(1)(A), (2) the principal-place-of-abode require-

ment in section 152(c)(1)(B), (3) the age requirement in section

152(c)(1)(C), and (4) the support requirement in section

152(c)(1)(D).




     3
      In his pretrial memorandum, petitioner indicated under the
heading “BURDEN OF PROOF”: “Jason E. Phillips [petitioner] will
provide Documentation to support the number of overnights and the
accuracy of the dates on which the over nights took place at
Jason E. Phillips’ residence in 2007.” Petitioner thus acknowl-
edged in his pretrial memorandum that he has the burden of proof
in this case.
                                 - 6 -

     As pertinent here, an individual satisfies the relationship

requirement if that individual is a child of the taxpayer.     Sec.

152(c)(2)(A).   As pertinent here, an individual satisfies the age

requirement if that individual is under age 19 as of the close of

the calendar year in which the taxpayer’s taxable year begins.

Sec. 152(c)(3)(A)(i).     An individual satisfies the principal-

place-of-abode requirement if that individual “has the same

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

of * * * [the taxpayer’s] taxable year”.     Sec. 152(c)(1)(B).

     The parties agree that each of EP and RP satisfies the

relationship requirement in section 152(c)(1)(A), the age re-

quirement in section 152(c)(1)(C), and the support requirement in

section 152(c)(1)(D).     The parties also agree that each of the

children spent more than one-half of the nights during 2007 with

Ms. Schouw and less than one-half of those nights with peti-

tioner.4   As a result, the parties agree that each of EP and RP

does not satisfy the principal-place-of-abode requirement in

section 152(c)(1)(B).     Nevertheless, petitioner argues on brief:

“Is the issue of who receives the dependant [sic] deduction for

the 2007 tax year to be decided by who has more overnights?       When

there are so few days of a difference?”

     Petitioner appears to disagree with the requirement that

Congress prescribed in section 152(c)(1)(B) to allow a taxpayer a



     4
      See supra note 2.
                               - 7 -

dependency exemption deduction for an individual only if, inter

alia, the individual has the same principal place of abode as the

taxpayer for more than one-half of the taxable year.   We are

bound to follow the law as Congress wrote it.

     On the record before us, we find that each of EP and RP does

not satisfy the principal-place-of-abode requirement in section

152(c)(1)(B).   On that record, we further find that for peti-

tioner’s taxable year 2007 each of EP and RP is not his qualify-

ing child, as defined in section 152(c), and that therefore each

of them is not his dependent, as defined in section 152(a)(1).5

     Based upon our examination of the entire record before us,

we find that petitioner has failed to carry his burden of estab-



     5
      Although the parties do not address whether each of EP and
RP is petitioner’s qualifying relative, as defined in sec.
152(d), for the sake of completeness, we shall consider that
question. On the record before us, we find that petitioner has
failed to carry his burden of establishing that for his taxable
year 2007 each of the children is his qualifying relative, as
defined in sec. 152(d), and that therefore each of them is his
dependent, as defined in sec. 152(a)(2). In this regard, we find
on that record that petitioner has failed to carry his burden of
establishing, inter alia, that the support requirement in sec.
152(d)(1)(C) is satisfied with respect to each of EP and RP for
his taxable year 2007.

     Respondent, but not petitioner, addresses whether the
special rule for divorced parents in sec. 152(e) is applicable in
the instant case. On the record before us, we find that the
special rule for divorced parents in sec. 152(e) is not applica-
ble here. In this regard, we have found that Ms. Schouw did not
at any time waive her right to claim dependency exemption deduc-
tions for EP and RP for her taxable year 2007 and that petitioner
did not attach to his 2007 return a written declaration that Ms.
Schouw signed in which she waived her right to claim dependency
exemption deductions for the children.
                                - 8 -

lishing that he is entitled for his taxable year 2007 to depend-

ency exemption deductions under section 151(a) for EP and RP.

Child Tax Credit

       Section 24(a) provides a credit with respect to each quali-

fying child of the taxpayer.    As pertinent here, section 24(c)(1)

defines the term “qualifying child” as “a qualifying child of the

taxpayer (as defined in section 152(c)) who has not attained age

17.”    Sec. 24(c)(1).

       We have found that each of EP and RP is not petitioner’s

qualifying child, as defined in section 152(c), for his taxable

year 2007.    On the record before us, we find that petitioner has

failed to carry his burden of establishing that each of the

children is his qualifying child, as defined in section 24(c),

for his taxable year 2007.    On that record, we find that peti-

tioner has failed to carry his burden of establishing that he is

entitled for his taxable year 2007 to the child tax credit under

section 24(a) with respect to EP and RP.

Additional Child Tax Credit

       The child tax credit provided by section 24(a) may not

exceed the taxpayer’s regular tax liability.    Sec. 24(b)(3).

Where a taxpayer is eligible for the child tax credit, but the

taxpayer’s regular tax liability is less than the amount of the

child tax credit potentially available under section 24(a),
                                 - 9 -

section 24(d) makes a portion of the credit, known as the addi-

tional child tax credit, refundable.

     We have found that petitioner has failed to carry his burden

of establishing that he is entitled for his taxable year 2007 to

the child tax credit under section 24(a) with respect to the

children.   On the record before us, we find that petitioner has

failed to carry his burden of establishing that he is entitled

for his taxable year 2007 to the additional child tax credit

under section 24(d) with respect to EP and RP.

     We have considered all of petitioner’s contentions and

arguments that are not discussed herein, and we find them to be

without merit, irrelevant, and/or moot.

     To reflect the foregoing,


                                         Decision will be entered

                                   for respondent.
