                  T.C. Summary Opinion 2010-80



                     UNITED STATES TAX COURT



                ANDRE KEITH MOORE, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 4377-09S.              Filed June 21, 2010.



     Frank Agostino, Reuben Muller, and Kevin Carson (student),

for petitioner.

     James Caligure, for respondent.



     PANUTHOS, Chief 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
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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.

     Respondent determined a $4,896 deficiency in petitioner’s

2007 Federal income tax.   After concessions,1 the issues for

decision are:   (1) Whether petitioner is entitled to a dependency

exemption deduction for S.S.; (2) whether petitioner is entitled

to claim head of household filing status; (3) whether petitioner

is entitled to the child tax credit and additional child tax

credit; (4) whether petitioner is entitled to an earned income

credit (EIC); and (5) whether petitioner is entitled to a child

care credit.

                            Background

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

The stipulation of facts, the stipulation of settled issues, and

the attached exhibits are incorporated herein by this reference.

At the time the petition was filed, petitioner resided in New

York.

     Petitioner and his girlfriend Lisa Saunders (Ms. Saunders)

met in 1989 and began a relationship shortly thereafter.   Their

relationship continued intermittently for a number of years.    Ms.


     1
      Petitioner conceded by stipulation that he is not entitled
to claim an additional child, L.S., as a dependent or for
purposes of the child tax credit, additional child tax credit,
earned income credit, or child care credit. The Court refers to
minor children by their initials. See Rule 27(a)(3).
                                - 3 -

Saunders’ son S.S. was born in 1994.    Since 1998 petitioner and

Ms. Saunders have lived together with S.S. as a family.    Although

petitioner holds Ms. Saunders out as his wife, petitioner and Ms.

Saunders have never been married.    Petitioner is not listed as

the father on S.S.’s birth certificate.    Petitioner asserted in

his petition that he is not S.S.’s biological father.

     Petitioner, Ms. Saunders, and S.S. lived together throughout

2007 in two rooms petitioner rented.    Petitioner worked as a bus

driver in 2007 and earned $21,425 in wages with $1,411 of

withholding.   Ms. Saunders reported $8,457 of income on her 2007

Federal income tax return.    Ms. Saunders also received public

benefits in 2007, but the source and amount of those benefits is

not revealed by the record.

     Petitioner timely filed his 2007 income tax return and

claimed total payments of $6,307, which was subsequently refunded

to him.   Respondent issued a notice of deficiency on November 28,

2008, determining a deficiency of $4,896.    Respondent determined

that petitioner is ineligible for the claimed head of household

filing status, the dependency exemption deductions, the EIC, the

child tax credit, the additional child tax credit, and the child

care credit.   Petitioner timely filed a petition in response to

the notice of deficiency.
                                - 4 -

                             Discussion

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

notice of deficiency is presumed correct, and the taxpayer bears

the burden of showing that the determination is in error.     Rule

142(a); Welch v. Helvering, 290 U.S. 111, 115 (1933).     Deductions

are a matter of legislative grace.      Deputy v. du Pont, 308 U.S.

488, 493 (1940); New Colonial Ice Co. v. Helvering, 292 U.S. 435,

440 (1934).   A taxpayer bears the burden of proving entitlement

to any deduction claimed.   Rule 142(a); INDOPCO, Inc. v.

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

Wilson v. Commissioner, T.C. Memo. 2001-139.     A taxpayer is

required to maintain records sufficient to substantiate

deductions claimed on his or her income tax return.     Sec. 6001;

sec. 1.6001-1(a), (e), Income Tax Regs.     The fact that a taxpayer

reports a deduction on the taxpayer’s income tax return is not

sufficient to substantiate the claimed deduction.     Wilkinson v.

Commissioner, 71 T.C. 633, 639 (1979); Roberts v. Commissioner,

62 T.C. 834, 837 (1974).    Rather, an income tax return is merely

a statement of the taxpayer’s claim; it is not presumed to be

correct.   Wilkinson v. Commissioner, supra at 639; Roberts v.

Commissioner, supra at 837; see also Seaboard Commercial Corp. v.

Commissioner, 28 T.C. 1034, 1051 (1957) (a taxpayer’s income tax

return is a self-serving declaration that may not be accepted as

proof for the claimed deduction or exclusion); Halle v.
                                - 5 -

Commissioner, 7 T.C. 245 (1946) (a taxpayer’s income tax return

is not self-proving as to the truth of its contents), affd. 175

F.2d 500 (2d Cir. 1949).

     Pursuant to section 7491(a), the burden of proof as to

factual matters shifts to the Commissioner under certain

circumstances.    Petitioner has neither alleged that section

7491(a) applies nor established his compliance with the

substantiation and recordkeeping requirements.    See sec.

7491(a)(2)(A) and (B).    Petitioner therefore bears the burden of

proof.    See Rule 142(a).

I.   Dependency Exemption Deduction

     A.     General

     A taxpayer is entitled to a dependency exemption deduction

only if the claimed dependent is a “qualifying child” or a

“qualifying relative” as defined under section 152(c) and (d).

Sec. 152(a).    A qualifying child is defined as the taxpayer’s

child, brother, sister, stepbrother, or stepsister, or a

descendant of any of them.    Sec. 152(c)(1) and (2).   The term

“child” includes a legally adopted individual and a foster child

placed in the care of the taxpayer by an authorized placement

agency or by a court order.    Sec. 152(f)(1).

     B.     Qualifying Child--Section 152(c)

     In the petition, petitioner asserted he is not S.S.’s

biological father.    At trial petitioner testified he is S.S.’s
                                - 6 -

biological father.    While Ms. Saunders, S.S.’s biological mother,

presented testimony on this subject, her testimony was

inconsistent and confusing with respect to dates and

relationships.    No reasonable explanation was provided as to why

petitioner was not listed as the father on S.S.’s birth

certificate.    We conclude that petitioner’s assertion in the

petition is more credible and do not accept his uncorroborated,

self-serving testimony that he is S.S.’s biological father.      See

Urban Redev. Corp. v. Commissioner, 294 F.2d 328, 332 (4th Cir.

1961), affg. 34 T.C. 845 (1960); Tokarski v. Commissioner, 87

T.C. 74, 77 (1986).    Therefore, S.S. is not a qualifying child

because he is not related to petitioner and is not an adopted or

foster child.

     C.   Qualifying Relative--Section 152(d)

     An individual who is not a qualifying child may, under

certain conditions, qualify as a dependent if he or she is a

qualifying relative.    Sec. 152(a).    Under section 152(d)(1), a

qualifying relative is an individual:      (A) Who bears a qualifying

relationship to the taxpayer; (B) whose gross income for the year

is less than the section 151(d) exemption amount; (C) who

receives over one-half of his or her support from the taxpayer

for the taxable year; and (D) who is not a qualifying child of

the taxpayer or of any other taxpayer for the taxable year.
                                 - 7 -

     To fit within the test of a qualifying relative, the

individual must satisfy each of the above requirements.    There

are multiple reasons S.S. is not a qualifying relative.

     D.   Section 152(d)(1)(D)

     Section 152(d)(1)(D) requires a qualifying relative to be

neither the taxpayer’s qualifying child nor the qualifying

child of any other taxpayer.    A qualifying child must meet all of

the following requirements:    (1) Bear a relationship to the

taxpayer such as son or daughter, (2) have the same principal

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

taxable year, (3) be under the age of 19, and (4) not provide

more than one-half of his own support.    Sec. 152(c).   S.S. is the

qualifying child of Ms. Saunders because he is her son, Ms.

Saunders and S.S. had the same principal place of abode for more

than 6 months (albeit with petitioner), S.S. was 13 years old,

and he did not provide any of his own support.    Thus S.S. meets

all four requirements for the year 2007.    Since S.S. is the

qualifying child of Ms. Saunders, S.S. cannot be a qualifying

relative for purposes of petitioner’s claimed dependency

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

     E.   Section 152(d)(1)(A) and (C)

     Even if the provisions of section 152(d)(1)(D) were

satisfied, S.S. would fail to qualify under the provisions of

section 152(d)(1)(A) and (C).    Section 152(d)(2) lists eight
                               - 8 -

qualifying relationships, seven of which involve various familial

relationships which do not apply to the circumstances herein.

The eighth type of qualifying relationship applies to an

individual, other than the taxpayer’s spouse, who has the same

principal place of abode as the taxpayer and is a member of the

taxpayer’s household for the taxable year.    Sec. 152(d)(2)(H).

In order for an individual to be considered a member of a

taxpayer’s household, the taxpayer must maintain the household

and both the taxpayer and the individual must occupy the

household for the entire taxable year.    Sec. 1.152-1(b), Income

Tax Regs.   A taxpayer maintains a household when he or she pays

more than one-half of the expenses for the household.    See sec.

2(b); Rev. Rule 64-41, 1964-1 C.B. (Part 1) 84, 85.

     The Court is satisfied that S.S. resided with petitioner and

had the same principal place of abode as petitioner.    In order

for the Court to determine whether a taxpayer provided over one-

half of the cost of maintaining a household, the taxpayer must

establish the total cost of maintaining the household.    See Rosen

v. Commissioner, T.C. Memo. 1994-40; see also Smith v.

Commissioner, T.C. Memo. 2008-229.     Costs of maintaining a

household include “property taxes, mortgage interest, rent,

utility charges, upkeep and repairs, property insurance, and food

consumed on the premises.”   Sec. 1.2-2(d), Income Tax Regs.

Although petitioner was the primary breadwinner of the family,
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there is evidence that Ms. Saunders also had income for 2007 and

contributed to the household.    There is also evidence that Ms.

Saunders received some public assistance in 2007, although the

source and amount are unclear.    Petitioner did not keep records

showing the household expenses, the amount that he paid towards

those expenses, or that he paid more than one-half of the total

expenses for the household.   Petitioner and Ms. Saunders failed

to provide testimony that might have sufficed in this regard.

Therefore, petitioner has not proven that he has a qualifying

relative, sec. 152(d)(1)(A), or that S.S. received more than half

of his support from petitioner, sec. 152(d)(1)(C).    Accordingly,

S.S. is not a qualifying relative under either section

152(d)(1)(A) or (C).

      We recognize that petitioner treated S.S. as his child and

continues to treat S.S. as his child.    Despite petitioner’s good

intentions of providing a home and support for S.S., petitioner

does not meet the requirements set forth in the Internal Revenue

Code and is not entitled to claim S.S. as his dependent for 2007.

II.   Head of Household Filing Status

      Section 1(b) imposes a special tax rate on an individual

taxpayer who files a Federal income tax return as a head of

household.   Section 2(b) in pertinent part defines a head of

household as an individual taxpayer who:    (1) Is unmarried as of

the close of the taxable year and is not a surviving spouse; and
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(2) maintains as his home a household that constitutes for more

than one-half of the taxable year the principal place of abode,

as a member of such household, of a dependent for whom the

taxpayer is entitled to a deduction under section 151.   See also,

e.g., Rowe v. Commissioner, 128 T.C. 13, 16-17 (2007).     The

taxpayer is considered as maintaining a household only if the

taxpayer furnishes over one-half of the cost of maintaining the

household.   Sec. 2(b)(1).

     Since petitioner does not have a dependent and has not

provided evidence to show he maintained the household, he is not

entitled to head of household filing status.

III. Child Tax Credit

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

qualifying child of the taxpayer.   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.”2

The child tax credit 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), section 24(d) makes a portion of

the credit, known as the additional child tax credit, refundable.


     2
      The credit is reduced by $50 for each $1,000 (or fraction
thereof) by which an individual’s modified adjusted gross income
exceeds specified amounts not relevant herein. Sec. 24(b).
                              - 11 -

      Since S.S. is not petitioner’s qualifying child, petitioner

is not entitled to the child tax credit or the additional child

tax credit.

IV.   Earned Income Credit

      An eligible individual is entitled to a credit against his

Federal income tax liability, calculated as a percentage

of his earned income, subject to certain limitations.   Sec.

32(a)(1); Rowe v. Commissioner, supra at 15.   Different

percentages and amounts are used to calculate the EIC, depending

on whether the eligible individual has no qualifying children,

one qualifying child, or two or more qualifying children.   Sec.

32(b); Rowe v. Commissioner, supra at 15.   A “qualifying child”

means a qualifying child of the taxpayer as defined in section

152(c).   Sec. 32(c)(3)(A).

      As previously discussed, S.S. is not petitioner’s qualifying

child; thus, petitioner is not entitled to the EIC with one

qualifying child for 2007.3

V.    Child Care Credit

      Section 21(a) allows a taxpayer a credit for a certain

percentage of employment-related expenses incurred to enable the



      3
      Petitioner’s adjusted gross income for 2007 exceeded
$12,590; accordingly he is also ineligible to claim an earned
income credit under sec. 32(c)(1)(A)(ii) as an individual without
a qualifying child. See Rev. Proc. 2006-53, sec. 3.07(1), 2006-2
C.B. 996, 1000.
                             - 12 -

taxpayer to be employed gainfully, including expenses for the

care of a “qualifying individual”.    See sec. 21(a) and (b)(2).   A

qualifying individual must be:   (1) The taxpayer’s qualifying

child or qualifying relative under the age of 13; (2) certain of

the taxpayer’s qualifying children or relatives who are unable to

care for themselves; or (3) a spouse of the taxpayer unable to

care for himself or herself who lives with the taxpayer for more

than half of the taxable year.   Sec. 21(b)(1).

     Because petitioner has no qualifying individuals, he is not

entitled to the child care credit for 2007.

                           Conclusion

     For reasons discussed herein, petitioner is not entitled to

claimed deductions, credits, or head of household filing status.

Respondent’s determination is therefore sustained.

     To reflect the foregoing,


                                          Decision will be entered

                                     for respondent.
