                        T.C. Summary Opinion 2013-36



                        UNITED STATES TAX COURT



                  JOYCE COULTMAN, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



      Docket No. 16433-11S.                       Filed May 9, 2013.



      Joyce Coultman, pro se.

      Monica E. Koch and Deborah Aloof, for respondent.



                             SUMMARY OPINION


      VASQUEZ, Judge: This case was heard pursuant to the provisions of

section 7463 of the Internal Revenue Code (Code) in effect when the petition was
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filed.1 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.

        Respondent determined a deficiency of $3,732 in petitioner’s Federal

income tax for 2008. The issues for decision are: (1) whether petitioner is entitled

to a dependency exemption deduction for her grandson, E.P.;2 (2) whether

petitioner is entitled to file as head of household; (3) whether petitioner is entitled

to the child care credit; and (4) whether petitioner is entitled to the child tax credit.

                                       Background

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

facts and the attached exhibits are incorporated herein by this reference. Petitioner

resided in New York at the time she filed the petition.

        Petitioner is a member of a housing cooperative through which she owns an

apartment in Brooklyn, New York. In 2008 she lived in that apartment with her

daughter Nicole, Nicole’s son (petitioner’s grandson) E.P., and Nicole’s daughter.

Petitioner, age 75 at the time of trial, was employed as a nurse practitioner. She


        1
         Unless otherwise indicated, all section references are to the Code in effect
for the year at issue, and all Rule references are to the Tax Court Rules of Practice
and Procedure.
        2
            This Court refers to minors by their initials. See Rule 27(a)(3).
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paid the maintenance fees for the apartment in addition to the utility bills. She and

Nicole each purchased their own groceries, and Nicole provided groceries for E.P.

and her daughter.

      In 2008 E.P. was 12 years old and attended a private kindergarten on

account of a mental disability. Petitioner reported $2,400 of child and dependent

care expenses on her Form 1040A, U.S. Individual Income Tax Return, for 2008.

      Petitioner timely filed her Form 1040A and claimed a dependency

exemption deduction for E.P., head of household filing status, a child care credit,

and a child tax credit.

                                     Discussion

I.    Burden of Proof

      As a general rule, the Commissioner’s determinations in a notice of

deficiency are presumed correct, and the taxpayer bears the burden of proving that

those determinations are erroneous. Rule 142(a); Welch v. Helvering, 290 U.S.

111, 115 (1933). However, section 7491(a)(1) and (2) shifts the burden of proof

to the Commissioner as to any factual issue relevant to a taxpayer’s liability for tax

if (1) the taxpayer introduces credible evidence with respect to such issue, and (2)

the taxpayer satisfies certain other conditions, including cooperation with the

Government’s requests for witnesses, information, and documents. See Rule
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142(a)(2). The burden is on the taxpayer to show that he satisfied these

prerequisites. See Richardson v. Commissioner, T.C. Memo. 2005-143; H.R.

Conf. Rept. No. 105-599, at 240, 242 (1998), 1998-3 C.B. 747, 993.

      With respect to the dependency exemption deduction, the factual issue is

whether Nicole claimed E.P. as a dependent. Petitioner credibly testified that to

her knowledge Nicole did not claim E.P. Petitioner expressed disbelief that Nicole

had claimed E.P. and questioned whether it was even possible for Nicole to claim

E.P. since Nicole did not work during 2008. Furthermore, petitioner has

cooperated with the Internal Revenue Service. We find that petitioner has

produced credible evidence that Nicole did not claim E.P., and thus the burden of

proof shifts to respondent with respect to the dependency exemption deduction.

      As discussed below, petitioner failed to produce credible evidence with

respect to the child care credit. Thus, the burden of proof does not shift to

respondent for that issue.

II.   Dependency Exemption Deduction

      A taxpayer may claim a dependency exemption deduction for each

individual who is a dependent (as defined in section 152) of the taxpayer for the

year. Sec. 151(a), (c). Section 152(a) defines the term “dependent” to mean either

a “qualifying child” or a “qualifying relative.”
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       As relevant here, a qualifying child of a taxpayer is an individual that: (1)

bears a relationship to the taxpayer as described in section 152(c)(2); (2) has the

same principal place of abode as the taxpayer for more than one-half of the taxable

year; (3) meets the age requirements in section 152(c)(3) specifying an individual

under the age of 19 or under the age of 24 if the individual is a student at the close

of the year; and (4) has not provided over one-half of his or her own support for

the year.3 Sec. 152(c)(1).

       E.P. satisfies the requirements to be petitioner’s qualifying child: (1) he is

petitioner’s grandson; (2) he had the same principal place of abode as petitioner

for more than one-half of 2008; (3) he was a minor during 2008; and (4) he did not

provide more than one-half of his own support in 2008. See sec. 152(c)(1)(A)-

(D).

       However, respondent argues that petitioner is not allowed the dependency

exemption deduction because of section 152(c)(4)(A)(i), known as the tie-breaker

rule. Specifically, section 152(c)(4)(A)(i) provides: “If * * * an individual may

be and is claimed as a qualifying child by 2 or more taxpayers for a taxable year

       3
         Sec. 152(c)(1)(E) was added in 2008 to impose an additional requirement:
the individual did not file a joint return for the taxable year at issue. However, this
amendment is effective only for taxable years beginning after December 31, 2008.
See Fostering Connections to Success and Increasing Adoptions Act of 2008, Pub.
L. No. 110-351, sec. 501(d), 122 Stat. at 3980.
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beginning in the same calendar year, such individual shall be treated as the

qualifying child of the taxpayer who is * * * a parent of the individual”.4

Respondent argues that both petitioner and Nicole claimed E.P. and that under the

tie-breaker rule E.P. is treated as the qualifying child of Nicole, not petitioner.

         However, respondent has failed to introduce any evidence that Nicole, or

anyone else, claimed E.P. As discussed above, petitioner presented credible

evidence that Nicole did not claim E.P. and the burden shifted to respondent to

establish that she did. Respondent failed to show that two taxpayers claimed E.P.

for 2008. Thus, the tie-breaker rule does not apply. Accordingly, because E.P.

was petitioner’s qualifying child in 2008, petitioner properly claimed him for

2008.5




      4
        The Court notes that this language has changed to: “if an individual may
be claimed as a qualifying child by 2 or more taxpayers for a taxable year
beginning in the same calendar year, such individual shall be treated as the
qualifying child of the taxpayer who is * * * a parent of the individual”. Sec.
152(c)(4)(A)(i) (2012). This change was effective for taxable years beginning
after December 31, 2008. See Fostering Connections to Success and Increasing
Adoptions Act of 2008, sec. 501(d).
         5
        Because the Court finds that E.P. is petitioner’s qualifying child for 2008,
we do not address whether E.P. is petitioner’s qualifying relative. See sec.
152(d)(1)(D).
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III.   Head of Household Filing Status

       As relevant here, section 2(b)(1) defines “head of household” as an

unmarried individual who maintains as his home a household that constitutes for

more than one-half of the taxable year the principal place of abode of either a

qualifying child or any other dependent of the taxpayer, if the taxpayer is entitled

to a deduction for the dependent under section 151. See sec. 2(b)(1).

       Petitioner maintained her home as E.P.’s principal abode for more than half

of the taxable year because she paid the maintenance fees and utilities every

month. The Court has already found that E.P. was petitioner’s qualifying child in

2008. Therefore, she is entitled to file as head of household for 2008. See id.

IV.    Child Care Credit

       Also known as the child care credit, section 21(a) and (b)(2) generally

provides for a child care credit with respect to employment-related expenses that

are incurred to enable the taxpayer to be gainfully employed, including expenses

to care for a “qualifying individual.” With exceptions not relevant here, a

qualifying individual is generally defined as an individual who is either a

qualifying child of the taxpayer (within the meaning of section 152(a)(1)) who has

not turned 13 or a dependent of the taxpayer who is physically or mentally

incapable of caring for himself or herself and shares the same place of abode with
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the taxpayer for more than one-half of the taxable year. Sec. 21(b)(1). In addition,

taxpayers claiming the child care credit are required to substantiate the claim by

keeping adequate records or through other sufficient evidence. See sec. 1.21-1(k),

Income Tax Regs.

      This Court has already found that E.P. was petitioner’s qualifying child. At

trial petitioner credibly testified that E.P. had a mental disability and that he lived

with her for more than half of 2008. Therefore, E.P. was a qualifying individual

for petitioner for purposes of section 21.

      Although petitioner credibly testified that she paid E.P.’s tuition, she does

not remember how much she paid. She also did not introduce any records that

established the amount she paid in 2008. Since petitioner did not substantiate her

claim through records or testimony, she is not entitled to the child care credit.

V.    Child Tax Credit

      The child tax credit is described in section 24, which provides that a

taxpayer may claim a credit against Federal income tax of up to $1,000 for each

qualifying child of the taxpayer. Sec. 24(a). For purposes of section 24(a) the

term “qualifying child” means a qualifying child of the taxpayer, as defined in

section 152(c). A qualifying child for purposes of section 24 is a “qualifying

child” as defined in section 152(c) who has not attained the age of 17. Sec.
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24(c)(1). Section 24(c) also requires that the individual be a U.S. resident. Sec.

24(c)(2).

      The Court has found that E.P. was petitioner’s qualifying child for 2008,

E.P. was under the age of 17 in 2008, and the fact that E.P. was a U.S. resident is

not in dispute. Therefore, petitioner is entitled to a child tax credit for 2008. See

sec. 24.

      Accordingly, petitioner is not entitled to the child care credit but is entitled

to the dependency exemption deduction, head of household filing status, and the

child tax credit for 2008.

      To reflect the foregoing,


                                                            Decision will be entered

                                                     under Rule 155.
