                  T.C. Summary Opinion 2008-135



                      UNITED STATES TAX COURT



                REGINALD C. SCOTT, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 369-06S.                  Filed October 28, 2008.



     Reginald C. Scott, pro se.


     R. Scott Shieldes, for respondent.




     GERBER, Judge:   This case was heard pursuant to the

provisions of section 74631 of the Internal Revenue Code in

effect when the petition was filed.   Pursuant to section 7463(b),


     1
       Unless otherwise indicated, all section references are to
the Internal Revenue Code in effect for 2003, the taxable year in
issue, and all Rule references are to the Tax Court Rules of
Practice and Procedure.
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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.

     Respondent determined a $5,347 deficiency in petitioner’s

2003 Federal income tax due solely to the disallowance of two

dependency exemption deductions and related child tax credits,

and the adjustment of petitioner’s filing status from head of

household to single.

                             Background

     Petitioner resided in Houston, Texas at the time his

petition was filed in this case.    Petitioner filed his 2003 Form

1040, U.S. Individual Income Tax Return, as a head of household

and claimed dependency exemption deductions for two daughters.

Petitioner also claimed a child tax credit with respect to his

dependents.

     Petitioner’s daughters were born on November 13, 1978, and

February 27, 1992, respectively.    During 2003 petitioner’s

daughters were 24 and 11 years of age, and petitioner’s 24-year-

old daughter was a full-time college student.     Petitioner was

married to their mother, Marilyn Scott, until their divorce on

June 1, 1994.   Marilyn Scott was awarded custody of petitioner’s

daughters.    The divorce decree also outlines times when

petitioner would have visitation with his children, including

holidays, birthdays, and weekends.      Petitioner was ordered to pay
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child support of $700 per month, which was for three children

including his two daughters.   Child support was payable until the

youngest child reached 18 years of age and through the end of the

high school year of the youngest child’s 18th birthday.

     In addition to the $700 monthly child support payment,

petitioner and his former wife each were required to pay one-half

of all health care not paid for by insurance, including medical,

dental, drugs, etc.   During 2003, 26 payments were withheld from

petitioner’s wages in the amounts of $323.08 or a total of

$8,400.08 for the year.   The divorce decree also has a section

labeled “Excessive Tax Withholding” which includes the following

order:   “For the purposes of federal income tax withholding,

Reginal Charles Scott is ORDERED AND DECREED to claim no fewer

than the actual number of his dependents on Form W-4.”

     Petitioner paid additional amounts, including $1,200 to

$1,600 annually for medical insurance coverage.   Petitioner,

however, was not aware of and cannot show the total amount that

was expended for the support of his daughters.

                            Discussion

     Petitioner claimed dependency exemption deductions for two

children for which he was not the custodial parent during 2003.

In addition to claiming them as dependents, petitioner filed his

2003 income tax return using head of household status, and he

claimed a child tax credit based on their status as dependents.
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       In general, the Commissioner’s determinations set forth in a

notice of deficiency are presumed correct, and the taxpayer bears

the burden of showing that the determinations are in error.      Rule

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

and credits are a matter of legislative grace, and the taxpayer

bears the burden of proving entitlement to any deduction or

credit claimed on a return.    See INDOPCO, Inc. v. Commissioner,

503 U.S. 79, 84 (1992); Wilson v. Commissioner, T.C. Memo. 2001-

139.

       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

requirements of section 7491(a)(2)(A) and (B) to substantiate

items, maintain records, and cooperate fully with respondent’s

reasonable requests.    Petitioner therefore bears the burden of

proof.

       Petitioner argues that the “Excessive Tax Withholding”

clause in his divorce decree entitled him to claim the dependency

exemption deductions for his children.    Respondent disagreed and,

at trial, explained that the withholding clause was intended to

ensure that petitioner had an adequate after-withholding tax net

pay to satisfy the court-ordered support payments that were being

automatically withheld by his employer.    The disputed clause
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states:   “For the purposes of federal income tax withholding,

Reginald Charles Scott is ORDERED AND DECREED to claim no fewer

than the actual number of his dependents on Form W-4.”    Although

this Court is not able to agree with respondent’s interpretation

of that clause, we are certain that it was not intended to give

petitioner the sole right to claim the Federal tax dependency

exemption deductions for the children.    Accordingly, we proceed

to decide whether petitioner has shown that he is entitled to

claim the dependency exemption deductions under the statutory

requirements.

     The issues we consider turn on whether either of

petitioner’s daughters was a dependent as defined in section 152

for 2003.   A taxpayer may be entitled to claim as a deduction an

exemption amount for each of his or her dependents.    Sec. 151(c).

An individual must meet the following five tests in order to

qualify as a dependent of the taxpayer:   (1) Support test; (2)

relationship or household test; (3) citizenship or residency

test; (4) gross income test; and (5) joint return test.    Secs.

151 and 152.    If the individual fails any of these tests, he or

she does not qualify as a dependent.

     For a claimed dependent to satisfy the support test a

taxpayer generally must provide more than one-half of the claimed

dependent’s support for the calendar year in which the taxable

year of the taxpayer begins.   Sec. 152(a).   The taxpayer must
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initially demonstrate, by competent evidence, the total amount of

the support furnished by all sources for the taxable year at

issue.   Blanco v. Commissioner, 56 T.C. 512, 514 (1971); Cotton

v. Commissioner, T.C. Memo. 2000-333.     If the total amount of

support is not established, then it is generally not possible to

conclude that the taxpayer provided more than one-half of the

support to the claimed dependent.      Blanco v. Commissioner, supra

at 514-515; Cotton v. Commissioner, supra.     Support includes

“food, shelter, clothing, medical and dental care, education, and

the like.”   Sec. 1.152-1(a)(2)(i), Income Tax Regs.

     Petitioner testified and provided evidence that he

contributed money toward his daughters’ expenses.     Sadly for

petitioner, however, he was unable to establish the total amount

of support provided to each child for 2003, and, accordingly,

petitioner has failed to show that he provided more than one-half

of each daughter’s support.   See Blanco v. Commissioner, supra at

514-515.

     Petitioner also contended that he made an agreement with the

attorneys who represented the parties in his divorce proceeding

that petitioner would be entitled to claim the daughters as

dependents on his separate tax returns.     Petitioner has not

provided any evidence of such an agreement other than his vague

testimony on the subject.   Petitioner appears to be arguing that
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there was a multiple support agreement with respect to the

children.

     Section 152(c) provides for multiple support agreements and

requires that no one person contribute over one-half of an

individual’s support and that over one-half of the support be

received from persons each of whom, but for the fact that he did

not contribute over one-half of such support, would have been

entitled to claim the individual as a dependent for a taxable

year beginning in that calendar year.   In addition, petitioner

would have to prove that he contributed over 10 percent of the

total support and each contributor of over 10 percent consented

in writing to a multiple support agreement.

     Because petitioner is unable to demonstrate that no one

person contributed over half of the support for 2003, he is not

entitled to claim the dependency exemption deduction under that

approach. We therefore hold that petitioner is not entitled to

the claimed deductions, as determined by respondent.

     Section 24(a) provides for a “credit against the tax * * *

for the taxable year with respect to each qualifying child of the

taxpayer”.   The term “qualifying child” means any individual if

three requirements are met, one of which is that the taxpayer be

allowed a deduction under section 151 with respect to the

individual for the taxable year.   Sec. 24(c)(1).   Because we have

concluded that petitioner is not entitled to dependency
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exemption deductions for his daughters, they are not qualifying

children.   We therefore hold that petitioner is not entitled to

child tax credits.

     Section 1(b) imposes a special income tax rate on a taxpayer

filing as a head of household.    To qualify as a head of household

the taxpayer must, inter alia, maintain as his or her home a

household that is the principal place of abode for more than one-

half of the year of an unmarried child of the taxpayer.       Sec.

2(b)(1)(A).   Because petitioner’s daughters did not live with him

for more than one-half of the year, we hold that he is not

entitled to head-of-household filing status.

     To reflect the foregoing,

                                         Decision will be entered for

                                 respondent.
