                  T.C. Summary Opinion 2002-158



                     UNITED STATES TAX COURT



              JOSEPH ALLEN GINGRICH, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 13369-01S.               Filed December 27, 2002.



     Joseph Allen Gingrich, pro se.

     Taylor Cortright, 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 at the time the petition was filed.   The

decision to be entered is not reviewable by any other court, and

this opinion should not be cited as authority.    Unless otherwise

indicated, subsequent section references are to the Internal
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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 deficiency in petitioner’s Federal

income tax of $4,537 for the 2000 tax year.   The issues for

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

exemption deductions; (2) whether petitioner is entitled to head-

of-household filing status; and (3) whether petitioner is

entitled to an earned income credit.

     Petitioner resided in Dale City, Virginia (Dale City), at

the time he filed the petition.   Some of the facts have been

stipulated and are so found.

Background

     Petitioner and his former wife, Catrina Jackson (Ms.

Jackson), have two children together:   Joshua Gingrich (Joshua)1,

born in 1989, and Joseph Gingrich (Joseph), born in 1992.

Petitioner and Ms. Jackson were divorced in 1994.    Pursuant to

the divorce decree,2 petitioner and Ms. Jackson had joint custody

of Joshua and Joseph.   The children lived in petitioner’s home in

Dale City and occasionally stayed with their mother at her home

in Alexandria, Virginia, (Alexandria) on weekends.




     1
        The 2000 return reflects Joshua’s last name as Jackson,
but the record otherwise reflects his last name as Gingrich.
     2
         The divorce decree was not made a part of the record.
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     School records dated September 27, 2001, reflect the Dale

City address as the children’s home address since 1999.    The

school records also reflect the Dale City address as Ms.

Jackson’s address.

     Since Joshua and Joseph’s school day ended before petitioner

arrived home from work, petitioner made varied arrangements for

the children until the end of his work day.    Sometimes the

children would go home, and a neighbor would check in on them.

Other times Ms. Jackson or her mother would watch the children

until petitioner arrived home from work.

     Ms. Jackson’s individually filed Federal income tax return

for the taxable year 2000 reflects the Dale City address as her

home address.   Ms. Jackson explained that petitioner assisted her

with the preparation of her return, and thus, the Dale City

address was utilized.

     Ms. Jackson neither paid nor received child support for

Joshua and Joseph during the year in issue.    She provided the

children with meals when they stayed with her and occasionally

purchased clothes for the children.

     Petitioner worked as a police officer from 1989 until he

resigned in 1999.    During the taxable year 2000, petitioner

received wages of $11,424.    He also received distributions of
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$14,000 from a pension plan in 2000.3   Petitioner supported

himself and his children from the above sources of income as well

as using some of his savings.    Petitioner did not receive any

form of government assistance during the year at issue.

     Petitioner paid monthly rent of $1,200 for the 5-bedroom

house where he, Joshua, and Joseph lived during the year in

issue.    Petitioner also paid for the expenses for water,

electricity, telephone, trash pickup, and a school field trip.

     In addition to the wages reported on his Federal income tax

return for the 2000 taxable year, petitioner claimed dependency

exemption deductions for Joshua and Joseph; head-of-household

filing status with Joshua and Joseph as his qualifying children;

and an earned income credit of $3,888, based upon two qualifying

children.

     Respondent determined in the notice of deficiency that

petitioner is not entitled to the claimed dependency exemption

deductions, head-of-household filing status, and earned income

credit.    Respondent asserts that petitioner did not substantiate

that he provided more than half of the support of the children.




     3
        Petitioner did not report receipt of any pension
distributions on his return. Respondent did not determine that
petitioner received pension income that was includable in his
gross income during the 2000 taxable year; therefore, the pension
distributions are not at issue.
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Respondent disallowed the head-of-household filing status because

petitioner did not have a dependent.

Discussion

     Generally, the burden of proof is on the taxpayer.     Rule

142(a)(1).4

     1.   Dependency Exemption Deductions

     A taxpayer is allowed a deduction for a dependent over half

of whose support for the calendar year was received from the

taxpayer.     Secs. 151(c)(1), 152(a).   A dependent includes a child

of the taxpayer who has not attained the age of 19 by the close

of the calendar year.     Secs. 151(c)(1)(B)(i), 152(a)(1); sec.

1.152-1(a)(1), Income Tax Regs.

     The term “support” includes food, shelter, clothing, medical

and dental care, education, and the like.     Sec. 1.152-1(a)(2)(i),

Income Tax Regs.     The total amount of support for each of the



     4
        The burden of proof may shift to the Commissioner under
sec. 7491 if the taxpayer establishes that he introduced credible
evidence and complied with the requirements of sec. 7491(a)(2)(A)
and (B) to substantiate items, maintain required records, and
fully cooperate with the Secretary’s reasonable requests. Sec.
7491 is effective with respect to Court proceedings arising in
connection with examinations by the Commissioner commencing after
July 22, 1998, the date of its enactment by sec. 3001(a) of the
Internal Revenue Service Restructuring and Reform Act of 1998,
Pub. L. 105-206, 112 Stat. 726.
     Petitioner’s return for the 2000 year was filed timely after
the effective date of sec. 7491; therefore, the examination
necessarily commenced after the effective date of sec. 7491. It
appears that petitioner has introduced credible evidence and
satisfied the requirements of sec. 7491; and respondent bears the
burden of proof; nevertheless, we are deciding this case on the
basis of the record.
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claimed dependents furnished by all sources during the year in

issue must be established by competent evidence.     Blanco v.

Commissioner, 56 T.C. 512, 514 (1971).   The amount of support

that the claimed dependent received from the taxpayer is compared

to the entire amount of support the individual received from all

sources.   Sec. 1.152-1(a)(2)(i), Income Tax Regs.

     In the case of a child of divorced parents, if a child

receives over half of his support during the calendar year from

parents who are divorced, and such child is in the custody of one

or both of his parents for more than one-half of the calendar

year, then such child shall be treated 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”).   Sec. 152(e)(1).

     As discussed, petitioner paid for most of the expenses for

Joshua and Joseph during 2000, including housing, food, and

school expenses.   Ms. Jackson testified that she paid for clothes

and food for Joshua and Joseph on occasion, but she did not

otherwise provide for their support on a regular basis or pay

child support.   We conclude that petitioner and Ms. Jackson

together provided over one-half of the support of Joshua and

Joseph.

     Ms. Jackson also testified that Joshua and Joseph stayed

with her at her home in Alexandria occasionally on weekends but
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they did not otherwise live with her during 2000, and also that

she did not live at petitioner’s home in Dale City.      Respondent

points to the school records of Joshua and Joseph and to Ms.

Jackson’s return for 2000 to support his allegation that Ms.

Jackson lived in the same house as petitioner during 2000;

however, we do not find these documents to be dispositive.       We

find Ms. Jackson’s testimony to be credible and conclude that she

did not live in petitioner’s house during 2000.

     We conclude that petitioner was the custodial parent and

Joshua and Joseph, therefore, are treated as receiving over half

of their support from petitioner.      Id.   Accordingly, petitioner

is entitled to the dependency exemption deductions for Joshua and

Joseph for the taxable year 2000.

     2.   Head-of-Household Filing Status

     As relevant here, an individual shall be considered a head

of household if, and only if, he is not married at the close of

his taxable year, is not a surviving spouse, and maintains as his

home a household which constitutes for more than one-half of the

taxable year the principal place of abode, as a member of such

household, of an unmarried child of the taxpayer.      Sec.

2(b)(1)(A)(i); sec. 1.2-2(b)(1), (b)(3), Income Tax Regs.       A

taxpayer shall be considered as maintaining a household only if

he pays over half of the cost thereof for the taxable year.         Sec.

2(b)(1); sec. 1.2-2(d), Income Tax Regs.      The expenses of
                                   - 8 -

maintaining a household include rent, utility charges, upkeep and

repairs, and food consumed on the premises.        Sec. 1.2-2(d),

Income Tax Regs.

     As we concluded above, Joshua and Joseph had as their

principal place of abode petitioner’s home in 2000, and

petitioner provided over half of the support for maintaining the

home; that is, he paid the rent for the house in which they lived

and other household expenses.      We conclude that petitioner is

entitled to head-of-household filing status for 2000.

     3.     Earned Income Credit

     Under section 32(a), a taxpayer may be allowed an earned

income credit if he is an eligible individual.        An “eligible

individual” includes one who has a qualifying child for the

taxable year.     Sec. 32(c)(1)(A)(i).     A “qualifying child”

includes a child of the taxpayer who has the same principal place

of abode as the taxpayer for more than one-half of the tax year

and has not attained the age of 19 as of the close of the taxable

year.     Sec. 32(c)(3).

     In order to receive the earned income credit, the taxpayer

must have identified the qualifying child on his return under the

identification rule of section 32(c)(3)(D).

     The earned income credit to which an eligible individual may

be entitled is an amount equal to the credit percentage of so

much of the taxpayer’s earned income for the taxable year as does
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not exceed the earned income amount.       Sec. 32(a)(1).   The amount

of the credit shall not exceed the excess, if any, of the credit

percentage of the earned income amount over the phaseout

percentage of so much of the modified adjusted gross income (or,

if greater, the earned income) of the taxpayer for the taxable

year as exceeds the phaseout amount.       Sec. 32(a)(2).

     During 2000, Joshua and Joseph both had the same principal

place of abode as petitioner and were under the age of 19.

Petitioner identified Joshua and Joseph on his return for 2000.

We conclude that petitioner had two qualifying children in 2000,

is an eligible individual under section 32(c)(1)(A)(i), and is

entitled to claim an earned income credit to the extent allowable

under section 32(b).

     Reviewed and adopted as the report of the Small Tax Case

Division.

     To reflect the foregoing,


                                         Decision will be entered

                                  for petitioner.
