                    T.C. Summary Opinion 2003-35



                      UNITED STATES TAX COURT



              FEDNER FRANCOIS TOVAR, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 7040-01S.              Filed April 7, 2003.


     Fedner Francois Tovar, pro se.

     Marshall R. Jones, for respondent.



     LARO, Judge:   This case was heard pursuant to section 7463.1

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

and this opinion should not be cited as authority.

     Petitioner petitioned the Court to redetermine respondent’s

determination of a $2,422 deficiency in petitioner’s 1999 Federal



     1
       Section references are to the applicable versions of the
Internal Revenue Code. Rule references are to the Tax Court
Rules of Practice and Procedure.
                                 - 2 -

income tax.    The issues for decision are whether petitioner is

entitled to (1) a dependency exemption deduction for his

daughter, Samantha, (2) head of household filing status, and

(3) the earned income credit.    We decide the first issue in the

affirmative.    We decide the remaining two issues in the negative.

                             Background

     Some facts have been stipulated.     The parties’ stipulation

of facts and the exhibits submitted therewith are incorporated

herein by this reference.    Petitioner resided in Alabama when his

petition was filed.

     Petitioner filed electronically a 1999 Federal income tax

return, using the filing status of “Head of Household”.    The

return was prepared by a representative from VITA, the Volunteer

Income Tax Assistance program.    On that return, petitioner

reported total income of $16,274 and claimed a dependency

exemption deduction for his youngest daughter, Samantha, who was

born on October 22, 1980.    Petitioner also claimed on his 1999

return that he was entitled to an earned income credit.

     Petitioner and his former wife, Jeanine, were divorced in

October 1990.   Approximately 15 months earlier, they had executed

and signed a notarized agreement entitled “Memorandum of Property

and Support Agreement After Separation”.    In relevant part, the

agreement provided:

          8. The Husband shall pay to the Wife, for
     maintenance and support of the parties’ children,
                                - 3 -

     Winfred Scilla Tovar and Samantha C. Tovar, the sum of
     three hundred twenty-five ($325.00) per month per
     child, for a total of six hundred fifty dollars
     ($650.00) per month, beginning on June 1, 1989, and
     continuing on the 5th day of each month thereafter,
     provided that when one of said children reaches the age
     of 18 years, marries, dies, or otherwise is emancipated
     from parental control, the payment for that child shall
     cease thereafter.

          9. Provided that no arrearage in the payment of
     child support exists, the Husband shall be entitled to
     claim the child, Samantha C. Tovar, as his dependent
     for tax purposes in any year in which separate tax
     returns are filed, and the Wife, as the custodial
     parent, expressly waives the right to claim that child
     as her dependent for tax purposes in any year in which
     separate tax returns are filed.

Petitioner gave a copy of this agreement to the VITA

representative to include with petitioner’s 1999 return.     The

agreement was not included with that return as electronically

filed.    Petitioner had included that agreement with each previous

Federal income tax return which he had filed since 1990.     Shortly

after filing his 1999 return, petitioner mailed respondent two

copies of the agreement to be considered in connection with that

return.

     Respondent determined (and reflected in a notice of

deficiency issued to petitioner) that petitioner was not entitled

to claim Samantha as his dependent.     Accordingly, respondent

determined, petitioner’s correct filing status was single, and he

was not entitled to an earned income credit.     The notice of

deficiency states as to respondent’s determination:
                                - 4 -

      ACCORDING TO THE DOCUMENT YOU SENT US [the agreement],
      YOU COULD CLAIM YOUR CHILD SAMANTHA AS A DEPENDENT
      UNTIL SHE WAS 18 YEARS OLD. SINCE SHE IS 20 NOW, * * *
      WE CAN’T ALLOW YOU HER DEPENDENT EXEMPTION.

      During the relevant year, Samantha was a full-time student

at the University of Miami, where she lived on campus.    When not

living at school, Samantha lived with her mother.    Samantha never

lived with petitioner during 1999.

                             Discussion

1.   Dependency Exemption Deduction for Samantha

      Respondent determined that the agreement allowed petitioner

to claim Samantha as his dependent only until her 18th birthday.

Respondent abandoned this determination on brief.    Respondent’s

sole argument on brief is that petitioner may not claim Samantha

as a dependent because petitioner did not attach a copy of the

agreement to his 1999 return.

      We reject respondent’s argument.    Although petitioner’s 1999

return as electronically filed may not have included a copy of

the agreement, respondent received the agreement shortly

thereafter and in fact considered that agreement to be part of

petitioner’s return.    In fact, respondent even relied upon the

agreement in arriving at the determination set forth in the

notice of deficiency.    We reverse respondent’s determination as

to this issue.
                                 - 5 -

2.   Filing Status

      Respondent determined that petitioner was not entitled to

use the head of household filing status because the home he

maintained was not the principal place of abode of a qualifying

person for more than one-half of the taxable year.      For this

purpose, a qualifying person includes a daughter such as

Samantha.   See sec. 2(b)(1)(A)(i).      Samantha’s principal place of

abode for more than one-half of 1999, however, would have to have

been in petitioner’s home for him to have qualified as a “head of

household”.   See sec. 2(b)(1)(A)(ii).     Because petitioner did not

meet this requirement, i.e., Samantha never lived in petitioner’s

home during 1999, we sustain respondent’s determination as to

this issue.

3.   Earned Income Credit

      Respondent determined that petitioner did not qualify for

the earned income credit for want of a qualifying child.      Under

section 32, an eligible individual is allowed a credit which is

calculated as a percentage of his or her earned income, subject

to certain limitations.     Sec. 32(a)(1).   An individual with a

qualifying child is an eligible individual.      Sec. 32(c)(1).    For

this purpose, a qualifying child includes a child of a taxpayer

who has the same principal place of abode as the taxpayer for

more than half of the taxable year.      Sec. 32(c)(3)(A).   Because

petitioner did not meet this requirement, i.e., Samantha never
                              - 6 -

lived in petitioner’s home during 1999, we sustain respondent’s

determination as to this issue.

                                           Decision will be entered

                                      under Rule 155.
