                        T.C. Memo. 1999-387



                      UNITED STATES TAX COURT



                 KERRY L. BRIGNAC, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 10780-98.                 Filed November 29, 1999.



     Kerry L. Brignac, pro se.

     Linda A. Neal, for respondent.



                        MEMORANDUM OPINION

     WOLFE, Special Trial Judge:    Respondent determined

deficiencies in petitioner's Federal income taxes in the amounts

of $3,795 and $2,025 for the taxable years 1995 and 1996,

respectively.   Unless otherwise indicated, section references are

to the Internal Revenue Code in effect for the years in issue.

     The issues for decision are:   (1) Whether petitioner is

entitled to claim his sons, Derrell and Travis Brignac, as
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dependents; (2) whether petitioner is entitled to head of

household filing status; and (3) whether petitioner is entitled

to claim his sons as qualifying children for the earned income

credit (EIC).

      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

Orleans, Louisiana, when the petition in this case was filed.

      On his 1995 and 1996 Federal income tax returns, petitioner

claimed dependency exemptions for his sons, head of household

filing status (listing his sons as qualifying persons), and an

EIC (listing his sons as qualifying children).    Petitioner

reported adjusted gross income (AGI) in the amounts of $12,214

and $6,995 on his 1995 and 1996 Federal income tax returns,

respectively.

      Petitioner has never been married.   During the years in

issue he did not reside with his sons' mother, Twyanna Baker (Ms.

Baker).   Petitioner claims that for the years in issue he and Ms.

Baker shared custody and financial responsibility for his sons

and that his sons resided with him for part of the year and with

Ms. Baker for part of the year.

1.   Personal Exemptions

      Petitioner claimed dependency exemptions for his sons on his

1995 and 1996 Federal income tax returns.    Respondent has

determined that petitioner is not entitled to dependency

exemptions for his sons because petitioner has not substantiated
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that he had custody of them for the greater portion of either of

the years in issue.

     Section 151(a) and (c) allows a deduction for a dependent as

defined in section 152.   A son or daughter of the taxpayer, over

half of whose support during the calendar year is provided for by

the taxpayer, is a dependent.   See sec. 152(a).    However, section

152(e)(1) further provides that if a child receives over half of

his support during the calendar year from parents who live apart

at all times during the last 6 months of the calendar year, and

if the child is in the custody of one or both his parents for

more than one-half of the calendar year, then the child is

treated as receiving over half of his support during the year

from the parent having custody for a greater portion of the

calendar year.   The regulations provide:    "In the event of so-

called 'split' custody, or if neither a decree or agreement

establishes who has custody, * * * 'custody' will be deemed to be

with the parent who, as between both parents, has the physical

custody of the child for the greater portion of the calendar

year."   Sec. 1.152-4(b), Income Tax Regs.    Section 152(e)(2)

provides an exception to this rule where the custodial parent

releases his claim to the exemption.

     During the years in issue, petitioner and Ms. Baker did not

reside together, and they provided over one-half of Derrell's and

Travis' support.   Petitioner contends that Derrell and Travis

resided with him for part of the years in issue.     However,

petitioner has not provided convincing evidence that demonstrates
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that Derrell and Travis resided with him for the majority of

either of those years.   Moreover, petitioner testified that he

did not even claim to know whether his sons spent the majority of

either of the years at issue with him or with their mother.

Based upon this record, we find that petitioner has failed to

demonstrate that he had physical custody of the children for the

greater portion of either of the years in issue.    Moreover,

petitioner has not provided evidence that Ms. Baker released her

claim to the exemptions for Derrell and Travis.    On the contrary,

the record indicates that Ms. Baker claimed the exemptions for

Derrell and Travis on her tax returns for 1995 and 1996.

Therefore, we hold that petitioner is not entitled to dependency

exemptions for Derrell and Travis for the years 1995 and 1996.

2.   Head of Household Filing Status

      Petitioner claimed head of household filing status on his

1995 and 1996 Federal income tax returns and listed his sons as

qualifying persons.   Respondent has determined that petitioner's

proper filing status for 1995 and 1996 is single.    Section 2(b)

provides that a taxpayer may be considered a head of household if

the taxpayer is not married at the close of the taxable year and

maintains as his or her home a household that constitutes the

principal place of abode for more than half of the taxable year

for a child of the taxpayer.    See sec. 2(b)(1)(A)(i).

      As we discussed above, petitioner failed to demonstrate that

Derrell and Travis resided in his home for the greater portion of

either of the years in issue.    Accordingly, we hold that
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petitioner is not entitled to head of household filing status for

1995 and 1996.

3.   Earned Income Credit

      Petitioner claimed earned income credits (EIC) in the

amounts of $2,921 and $2,790 on his 1995 and 1996 Federal income

tax returns, respectively.   In claiming the EIC, petitioner

listed his sons as qualifying children.   Section 32(a) generally

provides an eligible individual with an EIC against his or her

income tax liability.   However, section 32(a)(2) limits the

amount of credit allowable to a taxpayer.

      Section 32(a)(2) provides:

           (2) Limitation.--The amount of the credit
      allowable to a taxpayer under paragraph (1) for any
      taxable year shall not exceed the excess (if any) of--
               (A) the credit percentage of the earned income
           amount, over
               (B) the phaseout percentage of so much of the
           modified adjusted gross income (or, if greater,
           the earned income) of the taxpayer for the taxable
           year as exceeds the phaseout amount.

      In the case of an eligible individual with no qualifying

child, for 1996 the applicable credit percent and the phaseout

percentage are 7.65, the earned income amount is $4,220, and the

phaseout amount is $5,280.   See sec. 32(b).   In the case of an

eligible individual with no qualifying child for 1995, the

applicable credit percent and the phaseout percentage are 7.65,

the earned income amount is $4,100, and the phaseout amount is

$5,130.   See Rev. Proc. 94-72, 1994-2 C.B. 811.   Accordingly, an

eligible individual with no qualifying children is not entitled

to the earned income credit for 1995 and 1996 if his adjusted
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gross income is in excess of $9,230 and $9,500, respectively.

See sec. 32(a) and (b).

     Respondent determined that for the years in issue petitioner

did not have any qualifying children and that pursuant to the

limitation contained in section 32(a)(2), he is not entitled to

an EIC for 1995 and is only entitled to an EIC in the amount of

$193 for 1996.   A qualifying child is defined, among other

things, as a son or daughter of the taxpayer, or a descendant of

either, having the same principal place of abode as the taxpayer

for more than one-half of the taxable year and who meets the age

requirements contained in section 32(c)(3)(C).     See sec.

32(c)(3).

     As discussed above, petitioner failed to provide convincing

evidence to demonstrate that he provided the principal place of

abode for his sons for more than one-half of either of the years

1995 and 1996.   Accordingly, respondent's determination is

sustained.



                                            Decision will be entered

                                       for respondent.
