                   T.C. Summary Opinion 2009-70



                      UNITED STATES TAX COURT



              CYNTHIA LOIS BROCKINGTON, Petitioner v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 16710-07S.               Filed May 11, 2009.



     Cynthia Lois Brockington, pro se.

     Derek P. Richman, 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 $5,631.30 deficiency in petitioner’s

2005 Federal income tax.    The issues for decision are whether

petitioner is entitled to:    (1) Dependency exemption deductions;

(2) the earned income credit; (3) the additional child tax

credit; and (4) head of household filing status.

                             Background

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

The stipulation of facts and the exhibits received into evidence

are incorporated herein by reference.     When the petition was

filed, petitioner resided in Florida.

     For 2005 petitioner timely filed a Form 1040A, U.S.

Individual Income Tax Return.    On petitioner’s Form 1040A she

claimed dependency exemption deductions for her daughter, son,

and grandson.    She also claimed an earned income credit and an

additional child tax credit for her grandson and filed as a head

of household.

     Petitioner’s daughter was 21 years old at the close of 2005.

Petitioner’s daughter attended Daytona Beach Community College

(community college) from January 10 to May 6, 2005, but was not a

full-time student.    She also worked part time for about 2 months,

earning about $3,000 in 2005, and received child support payments

of $564 per month.    For 2005 she filed a Federal income tax
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return, reporting $3,512 of gross income.       She claimed a personal

exemption for herself and a dependency exemption deduction for

her son (petitioner’s grandson), who was 4 years old at the close

of 2005.

      Petitioner’s son was 19 years old at the close of 2005.       He

attended the community college full time from August 17 to

October 10, 2005.      He also worked for an indeterminable period in

2005.   For 2005 he filed a Federal income tax return, reporting

$7,365 of gross income and claiming a personal exemption for

himself.

      During 2005 petitioner’s daughter, son, and grandson resided

in petitioner’s home (except when petitioner’s daughter left the

home for a 2-week period).     Petitioner paid all of the family’s

living expenses in 2005 except for about $200 that her daughter

contributed.

                               Discussion

I.   Burden of Proof

      The Commissioner’s determinations in a notice of deficiency

are presumed correct, and the taxpayer bears the burden to prove

that the determinations are in error.       Rule 142(a); Welch v.

Helvering, 290 U.S. 111, 115 (1933).        But the burden of proof on

factual issues that affect the taxpayer’s tax liability may be

shifted to the Commissioner if the taxpayer introduces credible

evidence with respect to the issue.       Sec. 7491(a)(1).   Petitioner
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has not alleged that section 7491(a) applies, but the Court need

not decide whether the burden shifted to respondent since the

Court’s analysis is based on the record before it, not on who

bears the burden of proof.

II.   Dependency Exemption Deductions

      Generally, taxpayers may claim dependency exemption

deductions for their dependents (as defined in section 152).

Sec. 151(c).    But section 151(d)(2) effectively disallows

exemption deductions for certain dependents:     in the case of an

individual with respect to whom a deduction under this section is

allowable to another taxpayer for the taxable year, the exemption

amount applicable to the individual for the individual’s taxable

year is zero.

      The term “dependent” includes a “qualifying child” or a

“qualifying relative.”    Sec. 152(a).   A qualifying child is

defined as an individual who:    (1) Bears a certain relationship

to the taxpayer, such as the taxpayer’s child or grandchild;

(2) has the same principal place of abode as the taxpayer for

more than one-half of the taxable year; (3) meets certain age

requirements;1 and (4) has not provided over one-half of the


      1
      The age requirements for qualifying children are that they:
(1) Have not attained age 19 as of the close of the calendar year
in which the taxpayer’s taxable year begins; or (2) have not
attained age 24 as of the close of the calendar year in the case
of a student. Sec. 152(c)(3)(A). The term “student” is defined
to include an individual who during each of 5 calendar months in
                                                   (continued...)
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individual’s own support for the taxable year.   Sec. 152(c)(1)

through (3).   But section 152(c)(4) provides a limitation on the

dependency exemption deduction claimed for a qualifying child

where the qualifying child is claimed by two or more taxpayers:

if an individual may be and is claimed as a qualifying child by

two or more taxpayers for the taxable year, then the qualifying

child is treated as the qualifying child of the taxpayer who is

either the qualifying child’s parent or the taxpayer with the

highest adjusted gross income for the taxable year where the

qualifying child is claimed by a taxpayer other than a parent

(tie-breaking rule).

     A qualifying relative is defined as an individual:   (1) Who

bears a certain relationship to the taxpayer, such as the

taxpayer’s child or grandchild; (2) whose gross income for the

taxable year is less than the exemption amount ($3,200 for 2005);

(3) with respect to whom the taxpayer provides over one-half of

the individual’s support for the taxable year; (4) and who is not

a qualifying child of the taxpayer or of any other taxpayer for

the taxable year.   Sec. 152(d)(1) and (2).

     A.   Petitioner’s Daughter and Son

     In 2005 petitioner’s daughter attained age 21, and

petitioner’s son attained age 19.   Therefore, petitioner’s


     1
      (...continued)
the taxable year is a full-time student at certain educational
organizations. Sec. 152(f)(2); sec. 1.151-3(b), Income Tax Regs.
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entitlement to her claimed dependency exemption deductions for

her daughter and son depends on whether they were full-time

students in 2005 (and are otherwise qualifying children) or were

petitioner’s qualifying relatives.      See sec. 152(c)(1)(C),

(3)(A)(ii).

     Petitioner argues that her daughter was a full-time student

in 2005 because she attended class from “8:00 to 2:30 five days a

week” at the community college.    The parties, however, have

stipulated on the basis of a document from the school that she

was not enrolled as a full-time student.      Petitioner has produced

no other evidence to prove that her daughter was a full-time

student in 2005; the Court is therefore bound by the stipulation.

See Rule 91(e).    Petitioner’s son was enrolled at the community

college for only 3 months during 2005 (August through October);

he, therefore, fails the 5-month requirement of section

152(f)(2).    See sec. 1.151-3(b), Income Tax Regs.    Neither

petitioner’s daughter nor her son meets the definition of full-

time student; consequently, neither meets the definition of

qualifying child.    See sec. 152(c)(1)(C), (3)(A)(ii).

     For 2005 the gross incomes of petitioner’s daughter and son

were $3,512 and $7,365, respectively.      Both amounts exceed the

$3,200 personal exemption amount for 2005.      Therefore, neither

petitioner’s daughter nor her son meets the definition of

qualifying relative.
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     Moreover, petitioner was also required to prove for 2005 the

total amount of her daughter’s and son’s support from all sources

and either that:    (1) Neither her daughter nor her son provided

more than one-half of her or his own support under the definition

of qualifying child;2 or (2) she provided more than one-half of

her daughter’s or son’s support under the definition of

qualifying relative.   See sec. 152(c)(1)(D), (d)(1)(C); see also

Blanco v. Commissioner, 56 T.C. 512, 514-515 (1971).    Petitioner

provided no documentation to substantiate the amount of her

daughter’s or son’s support.

     In sum, petitioner is not entitled to dependency exemption

deductions for her daughter or son because neither is her

qualifying child nor her qualifying relative.   See secs. 151(a),

152(a), (c), (d).   Respondent’s determinations are sustained.

     B.   Petitioner’s Grandson

     Petitioner’s daughter claimed petitioner’s grandson as a

dependent on her 2005 Federal income tax return.   The tie-

breaking rule of section 152(c)(4)(A)(I) therefore dictates that

petitioner’s grandson is the qualifying child of petitioner’s

daughter.   And because petitioner’s grandson is the qualifying

child of petitioner’s daughter, he cannot be petitioner’s



     2
      Support includes amounts received from Government
assistance but does not include amounts received as scholarships
for study at an educational organization. See sec. 152(f)(5);
sec. 1.152-1(a)(2), (c), Income Tax Regs.
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qualifying relative.    See sec. 152(d)(1)(D).   In sum, petitioner

is not entitled to a dependency exemption deduction for her

grandson because he is not her qualifying child or qualifying

relative.    See secs. 151(a), (d)(2), 152(a), (c), (d).

Respondent’s determination is sustained.

III.    Earned Income Credit

       Section 32(a)(1) allows an “eligible individual” an earned

income credit against the eligible individual’s income tax

liability.    Section 32(a)(2) provides a limitation on the amount

of the allowable credit based on certain percentages and amounts

(as determined by section 32(b)).    Generally, the limitation

amount is based on the amount of the taxpayer’s earned income and

whether the taxpayer has no qualifying children, one qualifying

child, or two or more qualifying children (as defined in section

152(c)).    Sec. 32(a), (b), (c).

       Because the Court has concluded that petitioner’s daughter,

son, and grandson were not her qualifying children in 2005, she

is not entitled to an earned income credit for them.     For 2005 an

earned income credit is available to an eligible individual with

no qualifying children only if the eligible individual’s adjusted

gross income is less than $11,750.      See Rev. Proc. 2004-71, sec.

3.06, 2004-2 C.B. 970, 973.    Because petitioner’s 2005 adjusted

gross income is $16,682, she is not entitled to an earned income
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credit as an eligible individual with no qualifying children.

See id.    Respondent’s determinations are sustained.

IV.    Additional Child Tax Credit

       Generally, taxpayers may claim child tax credits for each

qualifying child (as defined in section 152(c)) under age 17.

Sec. 24(a), (c)(1).    Section 24(d) provides that a portion of the

credit may be refundable (commonly referred to as the additional

child tax credit).

       Because the Court has concluded that petitioner’s grandson

was not her qualifying child in 2005, she is not entitled to the

additional child tax credit for him.    Respondent’s determination

is sustained.

V.    Head of Household Filing Status

       As is relevant here, section 2(b)(1) defines “head of a

household” as an unmarried individual who maintains as his home a

household that constitutes for more than one-half of the taxable

year the principal place of abode of either a qualifying child or

any other dependent of the taxpayer, if the taxpayer is entitled

to a deduction for the dependent under section 151 (i.e., a

qualifying relative).

       The Court has concluded that petitioner’s daughter, son, and

grandson were not her qualifying children or qualifying relatives

in 2005.    Consequently, petitioner is not entitled to file as a
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head of household for 2005.   Respondent’s determination is

sustained.

     To reflect the foregoing,


                                         Decision will be entered

                                    for respondent.
