                     T.C. Summary Opinion 2008-47



                       UNITED STATES TAX COURT



                   MICHEAL HOLMES, Petitioner v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 25066-06S.             Filed April 29, 2008.



     Micheal Holmes, pro se.

     Julie A. Jebe, for respondent.



     COHEN, 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, all section references, and
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all Rule references are to the Internal Revenue Code in effect

for the year in issue.

     Respondent determined a deficiency of $2,811 in petitioner’s

Federal income tax for 2005.   The issues for decision are:

     (1) Whether petitioner is entitled to a dependency exemption

deduction of $3,200;

     (2) whether he is entitled to head of household filing

status; and

     (3) whether he is entitled to an earned income credit of

$2,662.

                            Background

     Some of the facts have been stipulated, and the stipulated

facts are incorporated in our findings by this reference.

Petitioner resided in Illinois at the time that he filed his

petition.

     During 2005, petitioner resided with Angela Tucker, whom he

married in 2006.   Ms. Tucker had received legal guardianship over

her nieces, G.F. and T.F., in 2003.    Ms. Tucker was unemployed

during 2005, but she received disability payments that year.

Ms. Tucker also received food stamps and cash from the Department

of Child and Family Services to aid her in caring for the

children.
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     Petitioner was not related to T.F. or G.F.    Petitioner

purchased clothes and groceries for T.F. in 2005 and gave her

spending money for school if she needed it.

     Petitioner claimed a dependency exemption of $3,200 for T.F.

on his 2005 return.   He also filed his 2005 return reporting head

of household status and claimed an earned income credit of $2,662

for 2005.

     Respondent determined that petitioner was not entitled to

the dependency exemption, changed his filing status to single,

and denied him the earned income credit in full.    However,

respondent now concedes that petitioner meets the requirements

for the earned income credit as a taxpayer without a qualifying

child and is entitled to an earned income credit of $159 for

2005.

                             Discussion

     The Internal Revenue Code allows as a deduction an exemption

for each dependent of a taxpayer in computing taxable income.

Sec. 151(c).   Section 152(a) defines a dependent as a qualifying

child or a qualifying relative of the taxpayer.    In addition to

other requirements, a qualifying child must be a child, brother,

sister, stepbrother, stepsister, or a descendant of such

relatives of the taxpayer.   Sec. 152(c).   A qualifying relative,

however, may be an individual who, for the year in issue, has the

same principal place of abode as the taxpayer and is a member of
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the taxpayer’s household, and for whom the taxpayer provides over

one-half of the support.   Sec. 152(d).

     Respondent determined that petitioner was not entitled to

the dependency exemption that petitioner claimed for the year in

issue because he did not establish that either T.F. or G.F. was a

qualifying child or qualifying relative.    Because T.F. and G.F.

were not petitioner’s children, brothers, sisters, stepbrothers,

stepsisters, or descendants of any of those relatives during the

year in issue, neither was a qualifying child of petitioner for

that year.   See sec. 152(c)(2), (f)(1).   However, because T.F.

and G.F. were members of petitioner’s household in 2005, T.F. and

G.F. might have been qualifying relatives of petitioner if he

provided over one-half of the support for either child.    See sec.

152(d).

     Petitioner argues that he is entitled to claim T.F. as his

dependent because he spent his own money to take care of T.F. and

G.F. during 2005.   He testified at trial that he purchased food

and clothing for T.F. in 2005 and gave her spending money for

school, but he could not state how much he spent.     Although

petitioner’s testimony is credible, he has not shown that he

provided over one-half of T.F.’s support for 2005.    Ms. Tucker

received disability income and food stamps and payments to be

used in providing for the children.    Petitioner did not provide

any receipts or other substantiation showing the respective
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contributions to the support of T.F.    Thus, he is not entitled to

claim T.F. as his dependent for 2005.    See sec. 152(d)(1)(C);

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

     Respondent also determined that petitioner’s correct filing

status for 2005 was single rather than head of household.

Section 1(b) establishes a special income tax rate for

individuals filing as head of a household.    Section 2(b) provides

the requirements for head of household filing status.    In order

to qualify as head of a household, petitioner must have been

unmarried at the end of 2005 and maintained a household that was

the principal place of abode of at least one dependent for more

than one-half of the taxable year.    Sec. 2(b)(1)(A)(ii).   A

taxpayer is considered as maintaining a household in a given year

only if the taxpayer furnishes over one-half of the cost of

maintaining the household during that year.    Sec. 2(b).

     Because T.F. was not a dependent of petitioner in 2005 and

petitioner has not shown that he furnished over one-half the cost

of maintaining the household in which he, Ms. Tucker, T.F., and

G.F. resided, petitioner is not entitled to head of household

filing status.

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

income credit against the individual’s income tax liability.

Section 32(a)(2) limits the credit allowed through a phaseout,

and section 32(b) prescribes different percentages and amounts
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used to calculate the credit.    The limitation amount is based on

the taxpayer’s earned income and whether the taxpayer has any

qualifying children.   To be eligible to claim a higher earned

income credit with respect to a child, the taxpayer must

establish that the child meets the definition of “qualifying

child” under section 152(c).    Sec. 32(c)(3)(A).   Because, for the

reasons stated above, neither T.F. nor G.F. was a qualifying

child of petitioner during the year in issue, his earned income

credit is limited to the amount respondent has conceded.

     To reflect the foregoing,


                                           Decision will be entered

                                      under Rule 155.
