                     T.C. Summary Opinion 2011-53



                        UNITED STATES TAX COURT



             FRANCISCO MARTINEZ CAMARILLO, Petitioner v.
             COMMISSIONER OF INTERNAL REVENUE, Respondent



        Docket No. 22992-09S.             Filed April 18, 2011.



        Francisco Martinez Camarillo, pro se.

        Kevin W. Coy, 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 (Code) in effect for the year in
                                - 2 -

issue, and all Rule references are to the Tax Court Rules of

Practice and Procedure.

       Respondent determined a deficiency of $5,895 in petitioner’s

Federal income tax for 2008.    After concessions,1 the issues for

decision are whether petitioner is entitled to the earned income

tax credit (EITC) and the additional 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 reference.    Petitioner resided in

California when he filed his petition.

       At the time of trial petitioner had lived with his

girlfriend (Ms. Alejandre) for 12 years, which included the year

at issue.    Ms. Alejandre is the biological mother of D.Z. and

J.L.    The children have lived with petitioner since they were

“very young”.    Petitioner is not the biological father of D.Z. or

J.L., nor has petitioner adopted either child.

       Petitioner electronically filed his Federal income tax

return for 2008.    He reported business income of $13,938 on the

return, and his adjusted gross income was $12,953.    On his return

petitioner claimed the EITC and the additional child tax credit.

Respondent disallowed both credits.


       1
      Respondent concedes that petitioner is entitled to
dependency exemption deductions for D.Z. and J.L. The Court
redacts the names of minor children. See Rule 27(a)(3).
                                  - 3 -

                               Discussion

I.    Burden of Proof

       Generally, the Commissioner’s determinations are presumed

correct, and the taxpayer bears the burden of proving that those

determinations are erroneous.2     Rule 142(a); see INDOPCO, Inc. v.

Commissioner, 503 U.S. 79, 84 (1992); Welch v. Helvering, 290

U.S. 111, 115 (1933).

       Deductions and credits are a matter of legislative grace,

and the taxpayer bears the burden of proving that he is entitled

to any deduction or credit claimed.       Rule 142(a); Deputy v. du

Pont, 308 U.S. 488, 493 (1940); New Colonial Ice Co. v.

Helvering, 292 U.S. 435, 440 (1934).

II.   EITC

       Section 32(a)(1) allows an “eligible individual” an EITC

against that individual’s income tax liability.      Section 32(a)(2)

provides limitations on the amount of the allowable credit based

on certain percentages and amounts (as determined by section

32(b)).      Generally, the limitation amount is based on the amount

of the taxpayer’s earned income and whether the taxpayer has no

qualifying children, one qualifying child, or two or more

qualifying children, as defined in section 152(c).      Sec. 32(a),

(b), and (c).


       2
      Petitioner has not claimed or shown that he meets the
requirements under sec. 7491(a) to shift the burden of proof to
respondent as to any factual issue relating to his tax liability.
                                 - 4 -

        Under section 152(c)(1)(A) the term “qualifying child” means

an individual “who bears a relationship to the taxpayer described

in paragraph (2)”.3    An individual bears a relationship to a

taxpayer for purposes of section 152(c)(1)(A) if the individual

is “a child of the taxpayer or a descendant of such a child” or

“a brother, sister, stepbrother, or stepsister of the taxpayer or

a descendant of any such relative.”      Sec. 152(c)(2).

        At trial petitioner testified that although the children had

lived with him since they were “very young”, he had taken no

steps to adopt or otherwise legally recognize the children as

his.     Under the Code, D.Z. and J.L. do not bear a relationship to

petitioner.     Therefore, D.Z. and J.L. are not petitioner’s

qualifying children for purposes of the EITC under section

32(a)(1).

        Individuals without qualifying children, however, may be

eligible for an EITC if their earned income is no greater than

the amount that the Code permits.     Sec. 32(a)(1), (b)(2), (j)(1);

see Rowe v. Commissioner, 128 T.C. 13, 15 (2007).      Earned income

for purposes of the EITC includes wages and net earnings from

self-employment.     Sec. 32(c)(2); sec. 1.32-2(c)(2), Income Tax

Regs.




        3
      The children’s relationship to petitioner is the only
factor of the qualifying child test at issue.
                                  - 5 -

       Rev. Proc. 2007-66, sec. 3.07, 2007-2 C.B. 970, 973, lists

the amounts used to determine the EITC for 2008 under section

32(b).    The revenue procedure lists $12,880 as the completed

phaseout amount.    Id.    The “completed phaseout amount” is the

amount of adjusted gross income (or, if greater, earned income)

at or above which no credit is allowed.      Id.   Petitioner’s

adjusted gross income and earned income both exceeded the

phaseout amount of $12,880 for 2008.      Accordingly, he is

ineligible to claim an EITC under section 32(c)(1)(A)(ii) as an

individual without a qualifying child for 2008.      Respondent’s

determination is sustained.

III.    Additional Child Tax Credit

       Subject to limitations based on adjusted gross income,

section 24(a) provides a credit with respect to each qualifying

child of a taxpayer.      A portion of the credit is refundable.

Sec. 24(d).    The refundable portion of the credit is commonly

referred to as the additional child tax credit.      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.”

       As discussed above, D.Z. and J.L. are not petitioner’s

qualifying children under section 152(c).      Therefore, petitioner

does not have any qualifying children and is not entitled to the
                                 - 6 -

section 24(d) additional child tax credit for 2008.      Respondent’s

determination is sustained.

     To reflect the foregoing,


                                         Decision will be entered

                                  under Rule 155.
