                  T.C. Summary Opinion 2006-33



                     UNITED STATES TAX COURT



                     HUON PEN, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent


     Docket No. 17718-02S.           Filed February 22, 2006.


     Huon Pen, pro se.

     Nhi T. Luu-Sanders, for respondent.



     COUVILLION, Special Trial Judge:   This case was heard

pursuant to section 7463 in effect when the petition was filed.1

The decision to be entered in this case is not reviewable by any

other Court, and this opinion should not be cited as authority.



     1
      Unless otherwise indicated, section references hereafter
are to the Internal Revenue Code in effect for the years at
issue. Sec. 7491 in some instances shifts the burden of proof to
the Commissioner. That section is not applicable in this case
because the issues are legal and not factual.
                               - 2 -


     Respondent determined a deficiency in petitioner’s Federal

income tax in the amount of $3,308 for 2001.

     The issues for decision are whether, for the year 2001,

petitioner is entitled to (1) a dependency exemption deduction

for one child under section 151(c); (2) head-of-household filing

status under section 2(b)(1); and (3) the earned income credit

under section 32(a).2

     Some of the facts were stipulated.   Those facts, with the

exhibits annexed thereto, are so found and are made part hereof.

Petitioner’s legal residence at the time the petition was filed

was Vancouver, Washington.

     On her Federal income tax return for 2001, petitioner

reported total income of $13,285, consisting of $10,363 in salary

and wages, $17 in taxable interest income, and $2,905 in

unemployment compensation.   Petitioner deducted two exemptions,

one for herself and the other for her granddaughter, L.H.    As

noted supra note 2, petitioner claimed the child care credit, the

child tax credit, the earned income credit, and head-of-household

filing status.




     2
      Petitioner claimed a child care credit under sec. 21 and
the child tax credit under sec. 24. Both credits are allowable
if the taxpayer is entitled to a dependency exemption deduction
for a child. Accordingly, petitioner’s entitlement to these
credits depends on the Court’s holding on the dependency
exemption deduction issue.
                                - 3 -


     In the notice of deficiency, respondent disallowed the

dependency exemption deduction for L.H., the child care credit,

the child tax credit, the earned income credit, and petitioner’s

use of head-of-household filing status.    The basis for the

disallowed dependency exemption deduction for L.H. was

respondent’s determination that petitioner failed to establish

that she provided more than one-half of the support for L.H.    All

the other disallowed items flow from or relate to the disallowed

dependency exemption deduction.

     Petitioner’s household for the year at issue included her

daughter, Jenny (the mother of L.H. and another child); her two

sons, Sam and Johnny; Narin Heng, the father of L.H. and the

other child; and petitioner’s husband or ex-husband, Sitha

Thaing.   Thus, petitioner had three grown children of her own who

lived in the same place of abode along with Jenny’s two children.

     Jenny was gainfully employed during 2001.    On her Federal

income tax return for 2001, Jenny claimed L.H. and her other

child as dependents.    However, on the subsequent advice of her

accountant and tax return preparer, Jenny filed an amended income

tax return for 2001, on which she did not claim L.H. as a

dependent.    The purpose of this amended return was to allow

Jenny’s mother, petitioner, to claim L.H. as a dependent on her

return.   Petitioner, accordingly, claimed L.H. as a dependent on

her return.
                                 - 4 -


     In the notice of deficiency, respondent disallowed

petitioner’s dependency exemption deduction for L.H. on the

ground that petitioner failed to establish that she provided more

than half the support for the child.

     The record shows that all members of petitioner’s household,

including petitioner, deposited their earnings in one bank

account.   All household expenses were paid out of that account.

In the audit of petitioner’s tax return, respondent determined

that, for the year at issue, petitioner’s earnings of $13,285 in

that account and the earnings of the other members of her

household totaled $32,164.59.    Respondent further determined that

this account also included assistance payments from the State of

Washington during the year at issue for the benefit of L.H.

These payments were identified at trial as “WIC” payments.

Because this account represented the total income of petitioner

and members of her family, respondent determined that the greater

portion of the support provided to L.H. during the year came from

persons other than petitioner.    Thus, respondent determined that

petitioner was not entitled to the dependency exemption deduction

she claimed on her 2001 tax return.

     The Court is satisfied from the record and from the evidence

at trial that petitioner did not provide more than one-half the

support of L.H. during the year at issue.   The general rule under

section 151 is that the dependency exemption deduction is
                               - 5 -


allowable to the taxpayer providing more than one-half of the

total support provided to the dependent during any given year.

Petitioner’s support did not reach that level.   Most of the

support came from the other sources described.   However, there

was an avenue petitioner could have availed herself of that would

have allowed her to claim the dependency exemption deduction.

She could have obtained a multiple support agreement where all

providers of support to L.H. agreed to allow the dependency

exemption deduction to one of their number.   Form 2120, Multiple

Support Agreement, is the proper medium by which this is

accomplished.3

     Petitioner did not include such an agreement with her

return; consequently, she is not entitled to the dependency

exemption deduction.   Respondent, therefore, is sustained on this

issue.

     The next issue is petitioner’s claim to head-of-household

filing status under section 2(b)(1).




     3
      The Form 2120 is an acknowledgment by a group of
contributors who have collectively provided over one-half of a
dependent’s support for a calendar year and who may annually
designate one of their number to claim the dependency exemption
deduction for the dependent. The taxpayer who is designated as
entitled to claim the dependency exemption deduction must attach
a statement to his or her return identifying each member of the
supporting group and, in general, comply with sec. 1.152-3,
Income Tax Regs.
                                - 6 -


     Section 2(b) provides generally that an individual shall be

considered a head-of-household if, among other requisites not

pertinent here, such individual maintains as his home a household

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

principal place of abode, as a member of such household, of an

unmarried son or daughter of the taxpayer or descendant of the

son or daughter of the taxpayer, or of any other person who is a

dependent of the taxpayer if the taxpayer is entitled to a

dependency exemption deduction for such person under section 151.

Sec. 2(b)(1)(A)(i) and (ii).    Petitioner did not establish that

she maintained a household because, under section 2(b), an

individual taxpayer is considered as maintaining a household only

if that individual furnishes more than one-half the cost of

maintaining that household.    On the basis of the previous

discussion, the Court concludes that more than one-half of the

cost of maintaining petitioner’s household came from the other

occupants of the home.   Petitioner did not maintain the household

and, therefore, is not entitled to head-of-household status under

section 2(b).   Respondent, therefore, is sustained on this issue.

     The third issue is petitioner’s claim to the earned income

credit under section 32(a).    Section 32(a) provides for an earned

income credit in the case of an eligible individual.    Section

32(c)(1)(A), in pertinent part, defines an “eligible individual”

as an individual who has a qualifying child for the taxable year.
                                - 7 -


Sec. 32(c)(1)(A)(i).    A qualifying child is one who satisfies a

relationship test, a residency test, an age test, and an

identification requirement.    Sec. 32(c)(3).   To satisfy the

relationship and age tests, the qualifying child must be the son

or daughter of the taxpayer or a descendant of either who is less

than 19 years of age or a student whose age is less than 24.

Sec. 32(c)(3)(B)(i), (C).    L.H. would appear to satisfy these

requirements.

     However, in the consideration of the section 2 head-of-

household issue, the Court has concluded that petitioner failed

to establish that she furnished over half of the cost of

maintaining the household.    There were other individuals, as

discussed above, who contributed to the household and to the

support of the child.   Section 32(c)(1)(C) provides that where

two or more individuals may claim a qualifying child:


     (C) 2 or more eligible individuals. If 2 or more
     individuals would (but for this subparagraph and after
     application of subparagraph (B)) be treated as eligible
     individuals with respect to the same qualifying child for
     taxable years beginning in the same calendar year, only the
     individual with the highest modified adjusted gross income
     for such taxable years shall be treated as an eligible
     individual with respect to such qualifying child.


Of all the providers of support to L.H., petitioner failed to

establish that her adjusted gross income was higher than that of
                              - 8 -


any one or more of the other providers of support to the child.

Respondent, therefore, is sustained on this issue.

     Reviewed and adopted as the report of the Small Tax Case

Division.



                                      Decision will be entered

                               for respondent.
