                        T.C. Memo. 2001-223



                      UNITED STATES TAX COURT



                    JOHN JETER, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 15017-99.             Filed August 14, 2001.


     John Jeter, pro se.

     David R. Ferguson, for respondent.


                        MEMORANDUM OPINION


     GOLDBERG, Special Trial Judge:   Respondent determined a

deficiency in petitioner’s Federal income tax for 1997 in the

amount of $2,607.   Unless otherwise indicated, section references

are to the Internal Revenue Code in effect for the year in issue.

     The issues for decision are:   (1) Whether petitioner is

entitled to dependency exemption deductions; and (2) whether
                                - 2 -


petitioner is entitled to the earned income credit.

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

so found.   The stipulation of facts and the attached exhibits are

incorporated herein by this reference.    At the time the petition

was filed, petitioner lived in Baltimore, Maryland.

     During 1997 petitioner and his then wife, Tona L. Jeter (Ms.

Jeter), were separated and no longer living together.   They have

two children from their marriage: a son, Jerome A. Jeter, born

May 23, 1982, and a daughter, Jamie N. Jeter, born November 8,

1988 (collectively the children).   At all times relevant to this

case, the children were minors.   Ms. Jeter filed for child

support in early 1997 and was subsequently divorced in 1998.

     During the period of separation, including the year in

issue, petitioner resided at 3704 Wilder Avenue, Baltimore,

Maryland (family home), which was the family home prior to

separation.   Ms. Jeter resided in an apartment “in the same

neighborhood”, but the actual distance from the family home is

unknown.    The children attended school in the area of the family

home.   During the school year, Ms. Jeter took the children to

petitioner’s home in the early morning.   Petitioner drove the

children to school, and the children returned to the family home

every day after the completion of the school day.   Ms. Jeter

typically picked up the children around 6 or 7 p.m. after she

finished work.   Ms. Jeter was employed as an office manager for
                              - 3 -


the Department of Social Services.    Petitioner testified that Ms.

Jeter earned approximately $23,000 during 1997 and paid a monthly

rent, including utilities, of $525.    Petitioner was also employed

full time during 1997.

     According to the order for custody from the Division of

Child Support, Circuit Court for Baltimore County, petitioner was

required to pay monthly child support.    Petitioner paid a total

of $7,170.76 in child support payments during 1997.    Petitioner

also made monthly mortgage payments on the family home of

approximately $645 during 1997.

     Petitioner and Ms. Jeter shared legal custody of the

children; however, according to the order for custody, physical

custody was awarded to Ms. Jeter.    According to the order of

custody, petitioner was entitled to visitation of two nights per

week, plus every other weekend, eight holidays, and five

consecutive nights during the children’s summer vacation.

Petitioner paid for the children’s school supplies, bedroom

furniture in the family home, some clothes, and meals when they

stayed at the family home.

     Ms. Ellen J. Williams (Ms. Williams), petitioner’s mother,

lived in a home jointly owned with petitioner in Asheville, North

Carolina (Asheville residence).   Petitioner claimed Ms. Williams

as a dependent during the year in issue.    Ms. Williams was 82

years old during the year in issue and received Social Security
                                - 4 -


benefits of approximately $300 per month.   Petitioner traveled to

North Carolina about four or five times a year to visit Ms.

Williams and to maintain the Asheville residence.   During 1997

petitioner painted the Asheville residence.   Petitioner testified

that he provided financial support to Ms. Williams of

approximately $200 per month during 1997.

     On petitioner’s 1997 Federal income tax return, he claimed

dependency exemption deductions for the children and for Ms.

Williams and an earned income credit.   Respondent disallowed the

dependency exemption deductions because petitioner failed to

establish that he was entitled to claim them as dependents.    As a

result of the disallowance, respondent further disallowed the

earned income credit.

Dependency Exemption

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

exemption amount for each dependent of the taxpayer.    A

taxpayer’s mother and children qualify as dependents so long as

the taxpayer provided more than half of the support to each

dependent.    Sec. 152(a)(1), (4); sec. 1.152-1(a)(1), Income Tax

Regs.

     As to the children, the support test in section 152(e)(1)

applies if:   (1) A child receives over half of his support during

the calendar year from his parents; (2) the parents live apart at

all times during the last 6 months of the calendar year; and (3)
                                 - 5 -


such child is in the custody of one or both of his parents for

more than one-half of the calendar year.     As these requirements

are satisfied in the present case, the “child shall be treated,

for purposes of subsection (a), as receiving over half of his

support during the calendar year from the parent having custody

for a greater portion of the calendar year (* * * referred to as

the ‘custodial parent’)”, thus allowing the dependency exemption

to be claimed by the custodial parent.     Sec. 152(e)(1); see sec.

1.152-4(c), Income Tax Regs.

        “Custody” is determined by the terms of the most recent

custody decree if there is one in effect.     Sec. 1.152-4(b),

Income Tax Regs.     In this case, the order of custody, dated

February 20, 1997,1 stated that Ms. Jeter and petitioner were

awarded joint legal custody of the children; however, Ms. Jeter

has the primary physical custody of the children.     After taking

into consideration petitioner’s visitation rights under the order

of custody, it is clear that the children spent more than one-

half of 1997 with Ms. Jeter.     Therefore, Ms. Jeter is the

custodial parent, and petitioner is the noncustodial parent for

1997.



        1
          For purposes of this case we accept the order for
custody from the Division of Child Support, Circuit Court for
Baltimore County, dated Feb. 20, 1997, as the most recent custody
decree. No documents from the divorce in 1998 were received in
the record.
                               - 6 -


     As the noncustodial parent, petitioner is allowed to claim

the children as dependents only if he meets one of three

statutory exceptions under section 152(e).   The noncustodial

parent can claim the dependency exemption deduction if:    (1) The

custodial parent releases claim to the exemption for the year;

(2) a multiple-support agreement is in effect; or (3) the decree

of divorce was executed prior to 1985, the decree expressly

provides that the noncustodial parent is entitled to the

deduction, and the noncustodial parent provides at least $600 for

the support of the child.   Sec. 152(e)(2), (3), and (4); sec.

1.152-4T, Temporary Income Tax Regs., 48 Fed. Reg. 34459 (Aug.

31, 1984).

     After reviewing the record, it is clear that petitioner does

not satisfy any of the exceptions under section 152(e).

Therefore, we sustain respondent’s determination denying

dependency exemptions as to the children.

     In order to claim Ms. Williams as a dependent, petitioner

must show by competent evidence:   (1) The total support provided

for the individual claimed, and (2) that he provided more than

half of such total support.   The amount of total support may be

reasonably inferred from competent evidence.   See Stafford v.

Commissioner, 46 T.C. 515, 518 (1966).   However, where the amount

of total support of an individual during the taxable year is not

shown, and cannot be reasonably inferred from competent evidence,
                                - 7 -


then it is not possible to conclude that the taxpayer has

contributed more than one-half.    See Blanco v. Commissioner, 56

T.C. 512, 515 (1971); Fitzner v. Commissioner, 31 T.C. 1252, 1255

(1959).

     Total support includes, inter alia, the cost of food,

clothing, education, household utilities, or home repair expenses

necessary to maintain the household in 1997.    Smith v.

Commissioner, T.C. Memo. 1997-544; sec. 1.152-1(a)(2)(i), Income

Tax Regs.   According to petitioner’s testimony, Ms. Williams’s

sources of monthly income were a Social Security benefit of

approximately $300 and his monthly contribution of approximately

$200.   Petitioner did not offer any other evidence, besides his

own testimony, to establish that he provided more than one-half

of Ms. Williams’s total support.   Ms. Williams did not testify.

Cf. Oates v. Commissioner, T.C. Memo. 1976-347.

     Without other competent evidence, we cannot determine that

petitioner provided more than one-half of his mother’s overall

support.    See Blanco v. Commissioner, supra at 515.   Accordingly,

we find that petitioner is not entitled to a dependency deduction

for Ms. Williams.   Respondent is sustained as to the denial of a

dependency exemption for Ms. Williams.

Earned Income Credit

     The relevant parts of section 32 provide that an individual

is eligible for the earned income credit if the individual has a
                                - 8 -


“qualifying child”.   A qualifying child is one who satisfies a

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

identification requirement.    Sec. 32(c)(3).

     Petitioner has met the relationship test, age test, and

identification requirement; therefore, the only factor which

needs discussion is the residency test.

     Based on the order for custody, and petitioner’s testimony,

petitioner was permitted visitation with the children for

approximately 127 days during 1997.      Petitioner contends that

because the children stayed with him for part of the day during

their school year, that time should be included in the children’s

residency at the family home.    We disagree.    Under the residency

test, a claimed individual’s principal place of abode must be for

more than one-half of such taxable year.      Sec. 32(c)(3)(A)(ii).

Merely staying in the family home for a few hours of the day does

not constitute the children’s principal place of abode.

     Because they fail to meet the residency test under section

32, we find that the children were not qualified children of

petitioner.   Respondent is sustained on this issue.

     Based on the foregoing,

                                             Decision will be entered

                                        for respondent.
