                  T.C. Summary Opinion 2009-128



                      UNITED STATES TAX COURT



                FRANKIE D. NEWKIRK, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 28518-07S.               Filed August 13, 2009.



     Frankie D. Newkirk, pro se.

     Randall L. Eager, for respondent.



     MARVEL, Judge:   This case was heard pursuant to the

provisions of section 7463 of the Internal Revenue Code in effect

when the petition was filed.1   Pursuant to section 7463(b), the

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


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

this opinion shall not be treated as precedent for any other

case.

       Respondent determined a deficiency in petitioner’s Federal

income tax of $6,081 for 2006.       After concessions, the issues for

decision are:       (1) Whether petitioner was entitled to the

dependency exemption deduction for a minor child, F.P.,2 for

2006; (2) whether petitioner was entitled to head of household

filing status for 2006; (3) whether petitioner was entitled to

the earned income credit for 2006; and (4) whether petitioner was

entitled to the child tax credit for F.P. for 2006.

                                Background

       Some of the facts have been stipulated.     The stipulation of

facts is incorporated herein by this reference.       When she

petitioned the Court, petitioner resided in North Carolina.

       F.P. is a minor child who was 8 years old in 2006 and who is

the daughter of Ursella P. Chancey (Ms. Chancey).       Petitioner is

F.P.’s godmother but is not legally or biologically related to

F.P.       During 2006 petitioner lived in a mobile home in North

Carolina.       F.P. spent the entire summer, most weekend nights

throughout the year, and occasional weeknights during the school

year at petitioner’s home.       When she was not staying at

petitioner’s home, F.P. stayed with Ms. Chancey, who lived


       2
      The Court refers to minor children by their initials.         Rule
27(a)(3).
                                - 3 -

several miles away.    Ms. Chancey has three other children, and

she allowed F.P. to stay with petitioner because F.P. would

receive more care and attention at petitioner’s home than at Ms.

Chancey’s home.

       Whenever F.P. visited petitioner’s home, including some

evenings when F.P. visited her after school but did not stay the

night, petitioner would cook dinner for her.    Petitioner also

occasionally packed lunches for F.P. to take to school.    In

addition to providing some food and housing, petitioner purchased

clothing and gifts for F.P. throughout the year, including a

Playstation 2 video game console, games, clothing, and

accessories.

       Petitioner did not legally adopt F.P., nor was petitioner

F.P.’s legal foster parent.    Ms. Chancey did not reimburse

petitioner for expenses petitioner incurred in taking care of

F.P.    Petitioner’s mortgage payment was $316 per month, and her

electric bill ranged from $95 to $150 per month during 2006.

Petitioner spent approximately $160 per month on food.

       At some point during 2006 or early 2007, petitioner had a

conversation with Ms. Chancey about claiming F.P. as a dependent.

Ms. Chancey agreed to let petitioner claim F.P. as a dependent on

petitioner’s 2006 Form 1040, U.S. Individual Income Tax Return.

Petitioner did not compensate Ms. Chancey for allowing her to

claim F.P. as a dependent.
                                - 4 -

     Petitioner claimed another minor child, D.Q., as a dependent

on her 2006 Form 1040, despite the fact that petitioner is

unrelated to D.Q. and provided no support to D.Q. in 2006.

Petitioner conceded before trial that she was not entitled to

claim D.Q. as a dependent.3

                              Discussion

1.   Dependency Exemption

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

amount for each dependent of the taxpayer for the taxable year.

Section 152(a) defines a dependent as a qualifying child or a

qualifying relative.

     Section 152(c)(2) defines a qualifying child as “(A) a child

of the taxpayer or a descendant of such a child, or (B) a

brother, sister, stepbrother, or stepsister of the taxpayer or a

descendant of any such relative.”    As F.P. fits neither of these

definitions, F.P. is not a qualifying child with respect to

petitioner.

     There are two tests to determine whether an individual is a

qualifying relative.   Section 152(d)(2)(H) defines a qualifying

relative as any individual who has the same principal place of


     3
      At trial petitioner initially testified she could not
recall how she obtained D.Q.’s Social Security number, which she
required in order to claim D.Q. as a dependent. When pressed by
respondent’s counsel and the Court, however, petitioner admitted
that she paid D.Q.’s biological mother to allow her to claim D.Q.
as a dependent.
                                 - 5 -

abode as the taxpayer and is a member of the taxpayer’s household

(household test).     To satisfy the household test, the individual

must live with the taxpayer for the entire taxable year.    Sec.

1.152-1(b), Income Tax Regs.4    However, temporary absences due to

“illness, education, business, vacation, military service, or a

custody agreement under which the dependent is absent for less

than six months” will not cause an individual to fail to qualify

as a member of the taxpayer’s household.     Id.

     A qualifying relative must also have received more than half

of his or her support from the taxpayer (support test).    Sec.

152(d)(1)(C).   “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.     If the support is in the

form of lodging, the item is measured according to its fair

market value.   Id.    Fair market value is measured according to

the value of the dependent’s quarters, as opposed to the full

mortgage payment made by the taxpayer.    See Barnes v.

Commissioner, T.C. Memo. 1985-397.

     Petitioner has the burden under Rule 142(a)(1) of presenting

credible evidence that F.P. was a dependent within the meaning of

section 152(a) and that she was entitled to a dependency


     4
      Sec. 1.152-1, Income Tax Regs., has not been amended to
reflect changes in sec. 152 that were enacted by the Working
Families Tax Relief Act of 2004, Pub. L. 108-311, sec. 201, 118
Stat. 1169. Nevertheless, the regulation remains valid to the
extent it is not inconsistent with sec. 152 as amended.
                               - 6 -

exemption deduction for F.P.   See Stephenson v. Commissioner, 79

T.C. 995, 1004 (1982), affd. 748 F.2d 331 (6th Cir. 1984).    In

evaluating petitioner’s evidence we are not bound to accept self-

serving, unverified, and undocumented testimony.    Shea v.

Commissioner, 112 T.C. 183, 189 (1999); see also Tokarski v.

Commissioner, 87 T.C. 74, 77 (1986).

     Petitioner has not satisfied the household test, because

F.P. did not live with her for the entire year.    Although F.P.

spent most weekend nights and the entire summer with petitioner,

F.P. lived with petitioner for slightly less than 60 percent of

the year.   In addition, petitioner did not introduce any evidence

that F.P.’s absence from her home during the remainder of the

year was due to illness, education, vacation, or any other

acceptable special circumstances.

     Neither has petitioner satisfied the support test, because

she did not introduce any credible evidence that she provided

more than half of F.P.’s total support from all sources during

2006.   Petitioner did not introduce any evidence regarding the

fair rental value of F.P.’s quarters in petitioner’s home or the

total support F.P. received from all sources in 2006 for food,

clothing, education, transportation, medical care, and other

necessities.   Aside from petitioner’s self-serving testimony, the

only evidence petitioner introduced to substantiate her expenses
                                - 7 -

consisted of 10 receipts totaling less than $500 for a video game

console, video games, clothing, and accessories.

     Because petitioner has failed to prove that she satisfies

the household and support tests, we hold that she was not

entitled to a dependency exemption deduction for 2006 with

respect to F.P. as a qualifying relative.

2.   Head of Household Filing Status

     Section 1(b) imposes a special tax rate on an individual

taxpayer who files a Federal income tax return as a head of

household.   Section 2(b) defines a head of household as an

individual taxpayer who:    (1) Is unmarried as of the close of the

taxable year and is not a surviving spouse, and (2) maintains as

his home a household that constitutes for more than one-half of

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

such household, of a dependent for whom the taxpayer is entitled

to a deduction under section 151.   Sec. 2(b)(1)(A)(ii); see also,

e.g., Rowe v. Commissioner, 128 T.C. 13, 16-17 (2007).    Because

F.P. was not a dependent for whom petitioner was entitled to a

deduction under section 151, petitioner was not entitled to head

of household filing status for 2006.

3.   Earned Income Credit

     An eligible individual is entitled to a credit against his

or her Federal income tax liability, calculated as a percentage

of such individual’s earned income, subject to certain
                                 - 8 -

limitations.    Sec. 32(a)(1); Rowe v. Commissioner, supra at 15.

Different percentages and amounts are used to calculate the

earned income credit (EIC), depending on whether the individual

has no qualifying children, one qualifying child, or two or more

qualifying children.     Sec. 32(b); Rowe v. Commissioner, supra at

15.    An eligible individual means, in pertinent part, “any

individual who has a qualifying child for the taxable year”.

Sec. 32(c)(1)(A)(i).     A “qualifying child” means a qualifying

child of the taxpayer as defined in section 152(c).       Sec.

32(c)(3)(A).

       As discussed previously, F.P. was not a qualifying child of

petitioner within the meaning of section 152(c).      Accordingly,

petitioner was not entitled to claim the EIC for 2006.

4.    Child Tax Credit

       Section 24(a) allows a taxpayer a credit of up to $1,000

against his or her Federal income tax liability for each

qualifying child.5   The term “qualifying child” means a

qualifying child of the taxpayer, as defined in section 152(c),

who has not attained the age of 17.      Sec. 24(c)(1).   Because F.P.

was not petitioner’s qualifying child, petitioner was not

entitled to claim the child tax credit with respect to F.P.


       5
      The credit is reduced by $50 for each $1,000 (or fraction
thereof) by which a taxpayer’s modified adjusted gross income
exceeds $110,000 in the case of a joint return, $75,000 in the
case of an unmarried individual, and $55,000 in the case of a
married individual filing a separate return. Sec. 24(b).
                                 - 9 -

5.   Conclusion

     For the foregoing reasons, we hold that (1) petitioner was

not entitled to a dependency exemption deduction for F.P. in

2006; (2) petitioner was not entitled to head of household filing

status in 2006; (3) petitioner was not entitled to the EIC in

2006; and (4) petitioner was not entitled to the child tax credit

in 2006.

     We have considered all remaining arguments made by the

parties, and to the extent not discussed above, we conclude such

arguments are irrelevant, moot, or without merit.

     To reflect the foregoing,


                                         Decision will be entered for

                                 respondent.
