                          T.C. Memo. 2009-58



                       UNITED STATES TAX COURT



                 LAWRENCE J. WILLOUGHBY, Petitioner v.
             COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 27969-07.                 Filed March 18, 2009.



     Lawrence J. Willoughby, pro se.

     J. Anthony Hoefer, for respondent.



               MEMORANDUM FINDINGS OF FACT AND OPINION


     CHIECHI, Judge:    Respondent determined a deficiency of

$6,195 in petitioner’s Federal income tax (tax) for his taxable

year 2006.

     The issues remaining for decision for petitioner’s taxable

year 2006 are:
                                - 2 -

     (1) Is petitioner entitled to head of household filing

status under section 2(b)?1    We hold that he is not.

     (2) Is petitioner entitled to the child care credit under

section 21(a)?   We hold that he is not.

     (3) Is petitioner entitled to the additional child tax

credit under section 24?    We hold that he is not.

     (4) Is petitioner entitled to the earned income tax credit

under section 32(a)?   We hold that he is not.

                           FINDINGS OF FACT

     Some of the facts in this case have been stipulated by the

parties and are so found.

     At the time petitioner filed the petition, he resided in

Nebraska.

     Throughout 2006, petitioner resided with a woman to whom he

was not married and that woman’s two daughters, JP and KP, who

were not his biological or adoptive daughters.    During that year,

petitioner provided more than one-half of the total support of

each of those children.    Neither JP nor KP suffered from any

physical or mental impairment in 2006.

     Petitioner timely filed Form 1040A, U.S. Individual Income

Tax Return, for his taxable year 2006 (2006 tax return).    In the

2006 tax return, petitioner claimed (1) head of household filing


     1
      All section references are to the Internal Revenue Code
(Code) in effect for the year at issue. All Rule references are
to the Tax Court Rules of Practice and Procedure.
                                 - 3 -

status, (2) dependency exemption deductions for JP and KP,

(3) the child care credit, (4) the additional child tax credit,

and (5) the earned income tax credit.      In that return, petitioner

claimed the additional child tax credit because he reported in

that return a total tax liability of zero.

     Respondent issued to petitioner a notice of deficiency

(notice) for his taxable year 2006.       In that notice, respondent,

inter alia, disallowed petitioner’s claimed (1) head of household

filing status, (2) dependency exemption deductions for JP and KP,

(3) child care credit, (4) additional child tax credit, and

(5) earned income tax credit.

                                OPINION

     It is petitioner’s position that, because respondent con-

cedes that he is entitled for his taxable year 2006 to dependency

exemption deductions for JP and KP, he is entitled for that year

to head of household filing status, the child care credit, the

additional child tax credit, and the earned income tax credit

that he claimed in his 2006 tax return.

Head of Household Filing Status

     Section 1(b) provides a special tax rate for an individual

who qualifies as a head of household.      As pertinent here, section

2(b)(1) provides that an unmarried individual “shall be consid-

ered a head of a household” if that individual “maintains as his

home a household which constitutes for more than one-half of such
                               - 4 -

taxable year the principal place of abode” of “a qualifying child

of the individual (as defined in section 152(c) * * *)”, sec.

2(b)(1)(A)(i), or “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”, sec.

2(b)(1)(A)(ii).   As pertinent here, however, section

2(b)(3)(B)(i) provides that “a taxpayer shall not be considered

to be a head of a household * * * by reason of an individual who

would not be a dependent for the taxable year but for * * *

subparagraph (H) of section 152(d)(2)”.

      Respondent concedes that petitioner is entitled for his

taxable year 2006 to dependency exemption deductions for JP and

KP.   According to respondent, petitioner is entitled to those

deductions only because JP and KP are his dependents under

section 152(a)(2) by reason of their being his qualifying rela-

tives under section 152(d)(2)(H).   We must determine whether

respondent is correct.   If we find that respondent is correct,

petitioner is not entitled for his taxable year 2006 to head of

household filing status.   See sec. 2(b)(3)(B)(i).

      Section 151(a) provides that “the exemptions provided by

this section shall be allowed as deductions” to a taxpayer.

Section 151(c) provides for an exemption for each dependent of

the taxpayer as defined in section 152.   Section 152(a) defines
                                - 5 -

the term “dependent” to mean either “(1) a qualifying child, or

(2) a qualifying relative.”

     We turn first to whether JP and KP are petitioner’s qualify-

ing children as defined in section 152(c) and therefore are his

dependents under section 152(a)(1).     Section 152(c) defines the

term “qualifying child” as follows:

     SEC. 152.   DEPENDENT DEFINED.

          (c) Qualifying Child.--For purposes of this
     section--

               (1) In general.--The term “qualifying child”
          means, with respect to any taxpayer for any tax-
          able year, an individual--

                      (A) who bears a relationship to the
                 taxpayer described in paragraph (2),

                      (B) who has the same principal place of
                 abode as the taxpayer for more than one-half
                 of such taxable year,

                      (C) who meets the age requirements of
                 paragraph (3), and

                      (D) who has not provided over one-half
                 of such individual’s own support for the
                 calendar year in which the taxable year of
                 the taxpayer begins.

A person under age 19 at the close of the taxpayer’s taxable year

meets the age requirements of section 152(c)(1)(C).    See sec.

152(c)(3)(A)(i).

     Section 152(c)(2) provides that a person bears a relation-

ship to the taxpayer for purposes of section 152(c)(1)(A) “if

such individual is--(A) a child of the taxpayer or a descendant
                                - 6 -

of such a child, or (B) a brother, sister, stepbrother, or

stepsister of the taxpayer or a descendant of any such relative.”

     Section 152(f)(1) defines the term “child” for purposes of

section 152 to mean either “a son, daughter, stepson, or step-

daughter of the taxpayer,” sec. 152(f)(1)(A)(i), or “an eligible

foster child of the taxpayer”,2 sec. 152(f)(1)(A)(ii).   An indi-

vidual (1) legally adopted by the taxpayer or (2) placed with the

taxpayer for adoption by the taxpayer is treated as a child of

the taxpayer by blood.3   Sec. 152(f)(1)(B).

     The term “stepdaughter” in section 152(f)(1)(A) is not

defined in the Code.   “Where, as is the case here, the statute

does not define the word, we generally interpret it by using its

ordinary and common meaning.”    Carlson v. Commissioner, 116 T.C.

87, 93 (2001) (fn. ref. omitted).   Merriam-Webster’s Collegiate

Dictionary 1223 (11th ed. 2007), defines the word “stepdaughter”

to mean “a daughter of one’s wife or husband by a former part-

ner”.    We have found that during 2006 petitioner was not married

to the mother of JP and KP.   On the record before us, we find

that during that year neither JP nor KP was petitioner’s step-

daughter under section 152(f)(1)(A)(i).




     2
      Petitioner does not contend that JP and KP are eligible
foster children under sec. 152(f)(1)(A)(ii).
     3
      Petitioner does not contend that JP and KP were placed with
him for adoption before or during 2006.
                                - 7 -

     We have found that during 2006 JP and KP were not peti-

tioner’s biological or adoptive daughters.   See sec.

152(f)(1)(A)(i) and (B).   On the record before us, we find that

during 2006 neither JP nor KP was a child of petitioner as

defined in section 152(f)(1).   On that record, we further find

that for his taxable year 2006 neither JP nor KP is a qualifying

child of petitioner as defined in section 152(c) and that there-

fore neither is his dependent under section 152(a)(1).

     We turn next to whether for petitioner’s taxable year 2006

JP and KP are his qualifying relatives and therefore are his

dependents because they are described in a subparagraph of

section 152(d)(2) other than section 152(d)(2)(H).4     Section

152(d) defines the term “qualifying relative” as follows:

     SEC. 152.   DEPENDENT DEFINED.

          (d) Qualifying Relative.--For purposes of this
     section--

               (1) In general.--The term “qualifying rela-
          tive” means, with respect to any taxpayer for any
          taxable year, an individual--

                      (A) who bears a relationship to the
                 taxpayer described in paragraph (2),

                      (B) whose gross income for the calendar
                 year in which such taxable year begins is
                 less than the exemption amount (as defined in
                 section 151(d)),



     4
      It is sec. 152(d)(2)(H) on which respondent bases respon-
dent’s concession that JP and KP are petitioner’s qualifying
relatives and therefore are his dependents.
                                 - 8 -

                       (C) with respect to whom the taxpayer
                  provides over one-half of the individual’s
                  support for the calendar year in which such
                  taxable year begins, and

                       (D) who is not a qualifying child of
                  such taxpayer or of any other taxpayer for
                  any taxable year beginning in the calendar
                  year in which such taxable year begins.

     As pertinent here, section 152(d)(2) provides that an

individual bears a relationship to the taxpayer for purposes of

section 152(d)(1)(A) if the individual is:

             (A) A child or a descendant of a child.

         *        *       *        *       *       *      *

          (H) An individual (other than * * * the spouse
     * * * of the taxpayer) who, for the taxable year of the
     taxpayer, has the same principal place of abode as the
     taxpayer and is a member of the taxpayer’s household.

     We have found that during 2006 neither JP nor KP was a child

of petitioner as defined in section 152(f)(1).5    On the record

before us, we find that for petitioner’s taxable year 2006

neither JP nor KP is petitioner’s qualifying relative by reason

of section 152(d)(2)(A).

     Petitioner does not claim, and the record does not estab-

lish, that JP or KP is (1) petitioner’s sister or stepsister,

(2) his mother or an ancestor of his mother, (3) his stepmother,

(4) a daughter of petitioner’s brother or sister, (5) a sister of




     5
      As discussed above, sec. 152(f)(1) defines the term “child”
for purposes of sec. 152.
                               - 9 -

petitioner’s father or mother, or (6) petitioner’s daughter-in-

law, sister-in-law, or mother-in-law.   See sec. 152(d)(2)(B)-(G).

     Based upon our findings and respondent’s concession that for

petitioner’s taxable year 2006 JP and KP are his qualifying

relatives under section 152(d)(2)(H), we find that for that year

neither JP nor KP would be petitioner’s dependent but for section

152(d)(2)(H).   We further find that pursuant to section

2(b)(3)(B)(i) petitioner is not entitled for that year to head of

household filing status under section 2(b).

Child Care Credit

     Section 21(a) allows a taxpayer a credit for a certain

percentage of employment-related expenses incurred to enable the

taxpayer to be employed gainfully, including expenses for the

care of a qualifying individual.   See sec. 21(a) and (b)(2).   As

pertinent here, section 21(b)(1) defines the term “qualifying

individual” to mean:

     SEC. 21.   EXPENSES FOR HOUSEHOLD AND DEPENDENT CARE
                SERVICES NECESSARY FOR GAINFUL EMPLOYMENT.

          (b) Definitions of Qualifying Individual and
     Employment-Related Expenses.--For purposes of this
     section--

               (1) Qualifying individual.--The term “quali-
          fying individual” means--

                     (A) a dependent of the taxpayer (as
                defined in section 152(a)(1)) who has not
                attained age 13, [or]

                     (B) a dependent of the taxpayer (as
                defined in section 152, determined without
                               - 10 -

                 regard to subsections (b)(1), (b)(2), and
                 (d)(1)(B)) who is physically or mentally
                 incapable of caring for himself or herself
                 and who has the same principal place of abode
                 as the taxpayer for more than one-half of
                 such taxable year * * *

     We have found that for his taxable year 2006 neither JP nor

KP is a qualifying child of petitioner as defined in section

152(c) and that therefore neither is his dependent under section

152(a)(1).    On the record before us, we find that for peti-

tioner’s taxable year 2006 neither JP nor KP is a qualifying

individual as defined in section 21(b)(1)(A) with respect to

petitioner.

     Although respondent concedes that for petitioner’s taxable

year 2006 JP and KP are petitioner’s dependents under section

152(a)(2), we have found that neither JP nor KP suffered from any

physical or mental impairment during that year.    In addition, the

record does not establish that JP or KP was physically or men-

tally incapable of caring for herself.    On the record before us,

we find that for petitioner’s taxable year 2006 neither JP nor KP

is a qualifying individual as defined in section 21(b)(1)(B) with

respect to petitioner.

     On the record before us, we find that petitioner is not

entitled for his taxable year 2006 to the child care credit under

section 21(a).
                               - 11 -

Additional Child Tax Credit

     Section 24(a) provides a credit with respect to each quali-

fying child of the taxpayer.   Section 24(c)(1) defines the term

“qualifying child” as “a qualifying child of the taxpayer (as

defined in section 152(c)) who has not attained age 17.”6

     The child tax credit may not exceed the taxpayer’s regular

tax liability.   Sec. 24(b)(3).   Where a taxpayer is eligible for

the child tax credit, but the taxpayer’s regular tax liability is

less than the amount of the child tax credit potentially avail-

able under section 24(a), section 24(d) makes a portion of the

credit, known as the additional child tax credit, refundable.

     We have found that for his taxable year 2006 neither JP nor

KP is a qualifying child of petitioner as defined in section

152(c).   On the record before us, we find that for that year

neither JP nor KP is a qualifying child of petitioner as defined

in section 24(c).   On that record, we further find that peti-

tioner is not entitled for his taxable year 2006 to the child tax

credit under section 24(a)7 and that therefore he is not entitled




     6
      The parties do not dispute that JP and KP were both under
age 17 at the close of petitioner’s taxable year 2006 and that
therefore each satisfies the age restriction in sec. 24(c)(1).
     7
      In the 2006 tax return, petitioner did not claim the child
tax credit; he claimed only the additional child tax credit
because he reported in that return a total tax liability of zero.
                               - 12 -

for that year to the additional child tax credit under section

24(d).

Earned Income Tax Credit

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

income credit against that individual’s tax liability.8     As

pertinent here, the term “eligible individual” is defined to mean

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

Sec. 32(c)(1)(A)(i).   Section 32(c)(3)(A) defines the term

“qualifying child” to mean “a qualifying child of the taxpayer

(as defined in section 152(c) * * *).”

     We have found that for his taxable year 2006 neither JP nor

KP is a qualifying child of petitioner as defined in section

152(c).   On the record before us, we find that for that year

neither JP nor KP is a qualifying child of petitioner as defined

in section 32(c)(3)(A).    On that record, we further find that for

his taxable year 2006 petitioner is not an eligible individual as

defined in section 32(c)(1)(A)(i).      On the record before us, we

find that petitioner is not entitled for his taxable year 2006 to

the earned income tax credit under section 32(a).9


     8
      The amount of the credit is determined based on percentages
that vary depending on whether the taxpayer has one qualifying
child, two or more qualifying children, or no qualifying chil-
dren. Sec. 32(b). The credit is also subject to a limitation
based on adjusted gross income. Sec. 32(a)(2). See infra note
9.
     9
      Assuming arguendo that petitioner were an eligible individ-
                                                   (continued...)
                             - 13 -

     We have considered all of petitioner’s contentions and

arguments that are not discussed herein, and we find them to be

without merit, irrelevant, and/or moot.

     To reflect the foregoing and the concession of respondent,


                                      Decision will be entered

                                under Rule 155.




     9
      (...continued)
ual as defined in sec. 32(c)(1)(A)(ii) for his taxable year 2006,
he nonetheless would not be entitled to the earned income tax
credit for that year. That is because petitioner reported
adjusted gross income for his taxable year 2006 of $21,025. Sec.
32(a)(2) completely phases out the earned income tax credit for
an eligible individual with no qualifying children where the
taxpayer has adjusted gross income in excess of $12,120 for the
taxable year 2006. See Rev. Proc. 2005-70, sec. 3.06(1), 2005-2
C.B. 979, 982.
