                       T.C. Memo. 1997-544



                     UNITED STATES TAX COURT



                 RODGER L. SMITH, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 23824-95.            Filed December 9, 1997.



     Rodger L. Smith, pro se.

     Lawrence B. Austin, for respondent.


                       MEMORANDUM OPINION

     DEAN, Special Trial Judge:   This case was heard pursuant to

section 7443A(b)(3) and Rules 180, 181, and 182.1

     Respondent determined a deficiency of $2,200 in petitioner's

Federal income tax for 1992.



     1
      All section references are to the Internal Revenue Code in
effect for the year at issue, and all Rule references are to the
Tax Court Rules of Practice and Procedure.
                                   - 2 -


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

entitled to a dependency exemption deduction; (2) whether

petitioner may file as head of household; and (3) whether

petitioner is entitled to the earned income credit.2

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

The stipulation of facts and attached exhibits are incorporated

herein by this reference.       At the time the petition was filed,

petitioner resided in Columbus, Georgia.

Background

       Petitioner is not married.     In 1992, he was a member of the

United States Army and resided in the barracks in Washington,

D.C.       Petitioner's mother, Alzater Wiggins, lived in Columbus,

Georgia, along with petitioner's 17-year old sister, Sonya

Tolbert and her son, Pierre Tolbert.       The house in which they

resided was titled in Alzater Wiggins' name.

       Ms. Wiggins received approximately $400 in Social Security

benefits each month as her sole source of income.       Petitioner

made monthly mortgage payments on Ms. Wiggins' house and sent her

$100 a month.       Ms. Wiggins paid the household utility bills out

of her $400 benefit, and when necessary petitioner sent her

additional funds to cover monthly expenses above $400.




       2
      The amount of petitioner's standard deduction will be
determined by our resolution of the issue of his filing status.
                                 - 3 -


     Both Sonya and Pierre Tolbert received some form of public

assistance while living in Ms. Wiggins' home.    Sonya Tolbert

received $110 each month in food stamps and Pierre Tolbert's

medical expenses were paid by the State of Georgia Department of

Medical Assistance.

     Petitioner filed as head of household for the taxable year

1992 and claimed dependency exemptions for both Sonya and Pierre

Tolbert.   Petitioner also claimed the earned income credit in

1992 for Sonya and Pierre Tolbert in the amount of $1,261.

     Respondent disallowed petitioner's claim for dependency

exemptions on the grounds that he did not provide over one half

of Sonya's and Pierre's support during 1992.    Respondent also

denied petitioner's claim for the earned income credit and his

head of household filing status.

Discussion

     Respondent's determinations are presumed correct, and

petitioner has the burden of proving them erroneous.    Rule

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

must maintain adequate records to substantiate the amount of any

deductions or credits claimed.    Sec. 6001; sec. 1.6001-1(a),

Income Tax Regs.

     The first issue we address is whether petitioner is entitled

to claim dependency exemption deductions for Sonya and Pierre

Tolbert.   Section 151(c)(1) allows a taxpayer to claim an
                                - 4 -


exemption deduction for each qualifying dependent.       A sister or

nephew is considered a "dependent" so long as the taxpayer is

providing more than half the dependent's support for the taxable

year and the dependent's gross income for that year is less than

the exemption amount.3

     Petitioner contends that because he sent checks to his

mother in Columbus, Georgia, to cover the first and second

mortgages on her house and other miscellaneous expenses, he is

entitled to claim his sister and nephew as dependents while they

are living in his mother's Georgia home.

     Petitioner testified about his financial contributions to

his mother that she used throughout the year.       The parties

stipulated that during 1992 petitioner made his mother's monthly

mortgage payments of $197.16.   At trial, petitioner testified



     3
      Sec. 152(a) defines "dependent" as:

          (a) * * * any of the following individuals over
     half of whose support, for the calendar year in which
     the taxable year of the taxpayer begins, was received
     from the taxpayer * * *

               *    *    *      *       *   *   *

               (3) A brother, sister, stepbrother, or
          stepsister of the taxpayer,

               *    *    *      *       *   *   *

               (6) A son or daughter of a brother or sister
          of the taxpayer,
                                 - 5 -


that he also contributed $155 to his mother's second mortgage and

sent her $100 a month4.

     We have no doubt that petitioner made significant financial

contributions to the household.    Petitioner, however, has not met

his burden of proof because he failed to substantiate the total

amount of support provided to Sonya and Pierre Tolbert.

     In order for petitioner to establish that he provided more

than half of his claimed dependents' support, he must first show

by competent evidence the total amount of support furnished by

all sources for the year in issue.       Blanco v. Commissioner, 56

T.C. 512, 514 (1971).     Petitioner has not offered evidence of the

total amount of support provided for Sonya and Pierre Tolbert in

1992.    It is therefore impossible to conclude that petitioner

provided more than one-half of their support for the taxable

year.

     There was no evidence presented on the cost of food,

clothing, education, household utilities, or home repair expenses

which were necessary to maintain the household in 1992.       See sec.

1.152-1(a)(2)(i), Income Tax Regs.       Furthermore, petitioner

acknowledged that additional sources of support were provided,

including amounts furnished by Ms. Wiggins as well as Sonya's




     4
      Petitioner did not identify how many of these payments were
made during 1992.
                               - 6 -


food stamps and Pierre's free medical assistance.5    All sources

of support must be accounted for in computing the total support

provided for Pierre and Sonya in 1992, including amounts

contributed by the individual for his or her own support.    See

sec. 1.152-1(a)(2)(ii), Income Tax Regs.   Without proper

substantiation, the court cannot conclude from the record that

more than half of Sonya's and Pierre's support was provided by

petitioner.   Accordingly, respondent's determination that Sonya

and Pierre are not dependents for section 151 purposes is

sustained.

     Petitioner contends that he is entitled to use head of

household filing status for 1992.   Section 1(b) imposes a special

tax rate on individuals filing as head of household.    Head of

household is defined in section 2(b) as an unmarried individual

who maintains his household as the principal place of abode for

specific family members for more than one-half the taxable year.

To maintain a household as a principal place of abode, the

taxpayer must furnish over half of the household's necessary

support over the taxable year.6

     5
      Welfare or public assistance received by a claimed
dependant is not considered support furnished by the taxpayer.
See Gulvin v. Commissioner, 644 F.2d 2 (5th Cir. 1981), affg.
T.C. Memo. 1980-111.
     6
      Sec. 2(b). DEFINITION OF HEAD OF HOUSEHOLD.--

          (1) In General.--For purposes of this subtitle, an
                                                   (continued...)
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     Petitioner failed to prove he provided over half the costs

of maintaining the household where Sonya and Pierre Tolbert

resided for the taxable year 1992.    We must find therefore that

petitioner did not maintain his household as their principal

place of abode and may not file as head of household.


     6
      (...continued)
     individual shall be considered a head of a household
     if, and only if, such individual is not married at the
     close of his taxable year, * * * and either--

               (A) maintains as his home a household which
          constitutes for more than one-half of such taxable
          year the principal place of abode, as a member of
          such household, of--

                    (i) a son, stepson, daughter, or
               stepdaughter of the taxpayer, or a descendant
               of a son or daughter of the taxpayer, but if
               such son, stepson, daughter, stepdaughter, or
               descendant is married at the close of the
               taxpayer's taxable year, only if the taxpayer
               is entitled to a deduction for the taxable
               year for such person under section 151 * * *,
               or

                    (ii) any other person who is a dependent
               of the taxpayer, if the taxpayer is entitled
               to a deduction for the taxable year for such
               person under section 151, or

               (B) maintains a household which constitutes
          for such taxable year the principal place of abode
          of the father or mother of the taxpayer, if the
          taxpayer is entitled to a deduction for the
          taxable year for such father or mother under
          section 151.

     For purposes of this paragraph, an individual shall be
     considered as maintaining a household only if over half
     of the cost of maintaining the household during the
     taxable year is furnished by such individual.
                               - 8 -


     Respondent's determination that petitioner does not qualify

for the earned income credit is also sustained.   Section 32(a)

offers the earned income credit only to eligible individuals.

"Eligible individual" is defined in section 32(c)(1)(A) as one

who has a "qualifying child" for the taxable year.   A qualifying

child is one who satisfies a relationship test, a residency test,

an age test, and an identification requirement.   See sec.

32(c)(3).

     The relationship test is set forth in section 32(c)(3)(B).

To satisfy the test, the qualifying child must be a son, a

daughter, or descendant, a stepson or stepdaughter, or a foster

child.   Petitioner argues that Pierre and Sonya Tolbert are

foster children.   We disagree with petitioner.

     "Eligible foster child" is defined in section

32(c)(3)(B)(III) as a child who is cared for by the taxpayer as

though the child were his own, and has the same principal place

of abode as the taxpayer for the entire taxable year.   The

statute neither interprets how a taxpayer cares for a child as

his own, nor defines principal place of abode.

     Petitioner offered no evidence that he cared for either

Sonya or Pierre Tolbert in a parental capacity.   He did not have

legal custody of the children, nor did he claim to play any

significant role in their day-to-day lives other than as a
                              - 9 -


financial contributor to the household.7    The relationship test

found in section 32(c)(3)(B) refers to lineal descendants of the

taxpayer, stepchildren, or foster children of the taxpayer.    It

does not mention siblings, or nephews.     This language shows that

Congress intended the earned income credit to be offered only to

parents actually caring for children.    We conclude that Sonya and

Pierre Tolbert do not fall within the definition of eligible

foster children for purposes of section 32.

                                           Decision will be entered

                                      for respondent.




     7
      Petitioner testified that on the eve of trial he learned
that Pierre was required to see the doctor every 6 months.
Although not conclusive, we believe that this testimony does not
support a finding that petitioner cared for Pierre as he would
his own child.
