                   T.C. Summary Opinion 2012-10



                      UNITED STATES TAX COURT



                KEVIN ALLEN HUDGINS, Petitioner v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 27783-10S.               Filed January 30, 2012.



     Kevin Allen Hudgins, pro se.

     Anita A. Gill, for respondent.



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

the provisions of section 7463 of the Internal Revenue Code in

effect when the petition was filed.    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.   Unless otherwise indicated, subsequent section references

are to the Internal Revenue Code in effect for the year at issue,
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and Rule references are to the Tax Court Rules of Practice and

Procedure.

     Respondent originally determined a deficiency in

petitioner’s Federal income tax of $4,875 for 2009.     Respondent

asserted an increase in the deficiency at the trial of this case

and subsequently filed a motion to amend the pleadings to conform

to the evidence.   That motion, asserting an increased deficiency

of $13,415, was granted by the Court.

     The issues for decision1 are whether petitioner:    (a) Had

unreported income of $49,801; (b) is entitled to deductions for

two dependency exemptions; (c) is entitled to head of household

filing status; (d) is entitled to the earned income credit; and

(e) is entitled to the additional child tax credit.

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

The stipulation of facts and the exhibits received in evidence

are incorporated herein by reference.    Petitioner resided in Ohio

when the petition was filed.

                            Background

     Petitioner timely filed his Federal income tax return for

2009 using head of household filing status.   Petitioner reported

wages and gross income of $9,642.   He claimed deductions for


     1
      Respondent’s pretrial memorandum states that the accuracy-
related penalty under sec. 6662(a) is at issue, but it was not
the subject of a determination in the notice of deficiency, nor
was it included in respondent’s motion asserting an increased
deficiency.
                               - 3 -

dependency exemptions for MB and KC2 who he claimed are his

grandchildren.   Petitioner was married during 2009.   One of the

children is the granddaughter of his wife, and the other is his

wife’s nephew.

     In addition to the wages reported on petitioner’s income tax

return for 2009, the parties agree that petitioner received

$9,522 from SCMS Administrative Services, Inc., as short-term

disability compensation and $27,541.97 from General Motors, LLC,

as wages.   Additionally, the Ohio Department of Job and Family

Services (Family Services) reported on Form 1099-G, Certain

Government Payments, that it paid petitioner $12,171 in 2009.

                            Discussion

     Generally, the Commissioner’s determinations in a notice of

deficiency are presumed correct, and the taxpayer has the burden

of proving that those determinations are erroneous.    See Rule

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

cases the burden of proof with respect to relevant factual issues

may shift to the Commissioner under section 7491(a).    As

petitioner did not argue or prove that the requirements of

section 7491(a) have been met, the burden of proof does not shift

to respondent.




     2
      The Court redacts the names of minor children.    See Rule
27(a)(3).
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Unreported Unemployment Compensation

     The only unreported income issue about which petitioner

raised an objection was the amount reported on the Form 1099-G.

If a taxpayer asserts a reasonable dispute with respect to any

item of income reported on a third-party information return and

he has fully cooperated3 with the Commissioner, the Commissioner

will have the burden of producing reasonable and probative

information concerning the item of income in addition to the

information return.   Sec. 6201(d).     Moreover, because

respondent’s motion to amend the pleadings to conform to the

evidence, encompassing the allegation of unreported unemployment

compensation, raises an increased deficiency, respondent bears

the burden of persuasion on the unemployment compensation.    See

Rule 142(a)(1).

     Petitioner testified that he was “laid off for two months.”

And he questioned:    “How could I draw that type of money in two

months?”   He testified that he had a note from his job stating

how long he was out of work, but he did not bring it with him to

the trial.

     To meet his burden of producing evidence under section

6201(d), respondent introduced into evidence, in addition to the

Form 1099-G, a copy of the “Continued Claim/Benefit Payment


     3
      Although respondent represents that petitioner failed to
participate in scheduled Appeals conferences, there is no
evidence that petitioner failed to cooperate fully.
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Summary” (CCBPS) maintained by Family Services pertaining to

petitioner.   The records show “GAP” or gross amount paid, “CSI”

or child support withheld, “OP” or overpayment, and “FAC” or

“Federal additional compensation”.4      According to the records of

Family Services, petitioner was paid certain unemployment

benefits from January through July 2009, and FAC payments were

paid through August 2009.

     Petitioner testified that “I never received those checks”

because he was “back at work.”    Petitioner, however, did admit

that for 2 months he received a check every other week for a

little over $600.   He added that “I pay child support”.     After

child support was withheld, he testified, “I think I got a little

over $600.00.”

     The CCBPS shows that petitioner was paid weekly and

generally received GAP of $452 plus FAC of $25 and CSI of $226.

It appears from the record, however, that petitioner was paid an

amount in excess of child support and FAC for only 11 weeks

because he had been “overpaid”.    Attached to the CCBPS is an

“Overpayment Summary” and a “Claim Summary”.      The CCBPS shows

entries for 15 weeks of “Denied/Overpaid” with respect to the GAP

of $452 which totals $6,780.




     4
      There is a notation on the CCBPS that the FAC entries were
$25 per week.
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     According to the Claim Summary, petitioner was paid $4,972

in unemployment benefits and $250 of FAC.    The $4,972 equals 11

times $452.    When $4,972 in unemployment benefits is added to the

$6,780 denied/overpayment amount and $250 of FAC, the sum is

$12,002, an amount that comports with the Form 1099-G.

     There is no legal or factual explanation, however, for

including in income for 2009 amounts that were “denied” to

petitioner in 2009 because of overpayments.    The Overpayment

Summary shows amounts for “Fraud” and “Non-Fraud” with respect to

December 2007 and for the period between February and August

2009.    It appears from the Overpayment Summary that petitioner

may have received unemployment benefits in at least 1 year before

the year at issue.    The Court cannot determine the temporal or

numerical relationship between the amounts shown as denied on the

CCBS and the amounts shown on the Overpayment Summary, the Claim

Summary, and the Form 1099-G.

        It was respondent’s burden to show that petitioner received

the $12,171 reported on the Form 1099-G.    Respondent has failed

to persuade the Court that petitioner received in 2009 more than

11 payments of $452 plus FAC of $250, or $5,222.

     The Court finds that petitioner received $5,222 from Family

Services that was not reported in income for 2009.
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Dependency Exemption Deductions

     Petitioner claimed deductions for two dependency exemptions

for 2009, which respondent disallowed in the notice of

deficiency.   Section 151 allows deduction of an exemption amount

for each dependent as defined in section 152.     Sec. 151(c).

Section 152(a) provides that a dependent means a “qualifying

child” or a “qualifying relative”.     As relevant here, section

152(c) defines a qualifying child as an individual:     (1) Who

bears a relationship to the taxpayer, such as a grandchild or

nephew of the taxpayer; (2) who has the same principal place of

abode as the taxpayer for more than one-half of the tax year; (3)

who has not attained the age of 19 or is a student who has not

attained the age of 24 as of the close of the calendar year; and

(4) who has not provided over one-half of such individual’s own

support for the calendar year in which the tax year of the

taxpayer begins.   Petitioner agrees that he is not related to the

children.   The children are not his qualifying children.    The

Court considers next whether the children are his qualifying

relatives under section 152(d).

     In pertinent part section 152(d) provides that an individual

is a qualifying relative of the taxpayer if:     (1) That individual

has the same principal place of abode as the taxpayer and is a

member of the taxpayer’s household; (2) the taxpayer provides

over one-half of the individual’s support for that year; and (3)
                                - 8 -

that individual is not the qualifying child of the taxpayer or of

any other taxpayer for that year.   Sec. 152(d)(1), (2)(H).

     Respondent concedes that petitioner’s wife’s grandchild

resided with petitioner and his wife.   But petitioner offered no

evidence on the other requirements of section 152(d) with respect

to the grandchild and no evidence at all on any of the

requirements with respect to the nephew.

     The Court sustains respondent’s determination that

petitioner is not entitled to dependency exemption deductions for

2009.

Head of Household Filing Status

     Petitioner filed as “head of household” for 2009.    In the

notice of deficiency, respondent determined petitioner’s proper

filing status to be married filing separately.

     Section 1(b) imposes a special tax rate on individuals

filing as heads of household.   A head of household is defined in

section 2(b) as an individual who is not married at the close of

the taxable year and who maintains as his home a household that

constitutes for more than one-half of the taxable year the

principal place of abode for a qualifying child or an individual

for whom he is entitled to a deduction under section 151.     Sec.

2(b)(1)(A)(i).

     Petitioner was married at the end of the taxable year, and

the Court has found that he had no qualifying children and no
                                  - 9 -
dependents.   Therefore, respondent’s determination on this issue

is sustained.

Earned Income Credit

     Petitioner claimed an earned income credit for taxable year

2009 as an individual with two qualifying children.     Respondent

determined that petitioner is not entitled to the earned income

credit for 2009.

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

income credit against the individual’s income tax liability.

Section 32(a)(2) limits the credit allowed, and section 32(b)

prescribes different percentages and amounts used to calculate

the credit that are based on whether the eligible individual has

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

qualifying children.   The term “qualifying child” means a

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

Sec. 32(c)(3).   The Court has determined that petitioner had no

qualifying children for 2009.

     Further, a married individual, as defined in section 7703,

will qualify for the credit only if a joint return is filed for

the taxable year.   Sec. 32(d).    As petitioner did not file a

joint return, he is not entitled to claim an earned income

credit.   Even if he had filed a joint return, he would not be

entitled to the credit as his adjusted gross income is above the

level for which any credit is allowed.     See Rev. Proc. 2009-21,

sec. 3.06, 2009-16 I.R.B. 860.
                               - 10 -

     Accordingly, petitioner is not eligible for an earned income

credit.   Respondent’s determination on this issue is sustained.

Additional Child Tax Credit

     For 2009 petitioner did not claim a child tax credit, but he

claimed an “additional child tax credit” of $996.    Respondent

determined that petitioner is not entitled to an additional child

tax credit.

     Section 24(a) authorizes a child tax credit with respect to

each qualifying child of the taxpayer for whom he is allowed a

deduction under section 151.   The term “qualifying child” is

defined in section 24(c).   A qualifying child means a qualifying

child of the taxpayer as defined in section 152(c) who has not

attained the age of 17 as of the close of the taxable year.      Sec.

24(c)(1).   Because petitioner has not shown that he is entitled

to a deduction under section 151 for a qualifying child as

described in section 152(c), he is not entitled to a child tax

credit.

     In the absence of other nonrefundable personal credits, a

taxpayer is allowed to claim a child tax credit in an amount that

is the lesser of the full child tax credit or the taxpayer’s

Federal income tax liability for the taxable year.    See sec.

26(a).

     If the child tax credit exceeds the taxpayer’s Federal

income tax liability for the taxable year, a portion of the child
                              - 11 -

tax credit may be refundable as an “additional child tax credit”

under section 24(d)(1).   Because petitioner is not entitled to a

child tax credit, he is not entitled to an additional child tax

credit.

     To reflect the foregoing,


                                          Decision will be entered

                                    under Rule 155.
