                  T.C. Summary Opinion 2005-130



                     UNITED STATES TAX COURT



                   CHUE Y. HER, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 8683-03S.               Filed August 29, 2005.


     Chue Y. Her, pro se.

     Thomas M. Newman, for respondent.



     COUVILLION, Special Trial Judge:    This case was heard

pursuant to section 7463 of the Internal Revenue Code in effect

at the time the petition was filed.1    The decision to be entered

is not reviewable by any other court, and this opinion should not

be cited as authority.


     1
      Unless otherwise indicated, all subsequent section
references are to the Internal Revenue Code in effect for the
year in issue. All Rule references are to the Tax Court Rules of
Practice and Procedure.
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     Respondent determined a deficiency of $5,183 in petitioner’s

Federal income tax for the year 2001.

     The issues for decision are whether petitioner is entitled

to: (1) Head-of-household filing status under section 2(b); (2)

dependency exemption deductions for three children under section

152; (3) an earned income credit under section 32(a); (4) a child

and dependent care credit under section 21(a)(1); and (5) a child

tax credit under section 24.

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

The stipulation of facts and the exhibits received into evidence

are incorporated herein by reference.   At the time the petition

was filed, petitioner resided in Fresno, California.

     Petitioner was employed as a medical assistant during the

year 2001.   She filed her return for 2001 as a head of household.

She reported gross income of $18,331 and claimed dependency

exemptions for three children, an earned income credit of $2,904,

a child care credit of $13, and a child tax credit of $833.

     Respondent issued a notice of deficiency determining that

petitioner was not entitled to head-of-household filing status,

the claimed dependency exemption deductions, the earned income

credit, the child care credit, and the child tax credit because

she failed to substantiate her entitlement to them.

     Deductions are a matter of legislative grace, and taxpayers

must maintain adequate records to substantiate the amounts of any
                                 - 3 -

deductions or credits claimed.    Sec. 6001; INDOPCO, Inc. v.

Commissioner, 503 U.S. 79, 84 (1992); sec. 1.6001-1(a), Income

Tax Regs.   Taxpayers generally bear the burden of proving that

the Commissioner’s determination was incorrect.      Rule 142(a);

Welch v. Helvering, 290 U.S. 111 (1933).2

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

filing status is head of household.      Section 2(b) defines “head

of household”, in relevant part, as an individual taxpayer who

(1) is not married at the close of the taxable year, and (2)

maintains as her home a household that constitutes for more than

one-half of the taxable year the principal place of abode of a

son or daughter of the taxpayer.    Sec. 2(b)(1)(A)(i).      A taxpayer

maintains a household if the taxpayer pays more than one-half of

the total cost to maintain the household, including such items as

property taxes, mortgage interest, utility charges, and food.

Sec. 1.2-2(d), Income Tax Regs.

     Petitioner failed to establish adequately that she

maintained a household during 2001.      She provided some

documentation, including a phone bill and rental agreement, but

she did not demonstrate her contribution to total household

expenses.   Thus, regardless of petitioner’s marital status,


     2
      Under some circumstances, the burden of proof shifts to
respondent under sec. 7491. That burden does not shift to
respondent in this case because petitioner failed to maintain
records and comply with the requirements of substantiation as
required by sec. 7491(a)(2).
                                - 4 -

discussed infra, petitioner failed to establish her entitlement

to head-of-household filing status under section 1.2-2(d), Income

Tax Regs.

     Section 151(c) allows dependency exemption deductions for

each dependent as defined in section 152(a).     Section 152(a)

defines a dependent as an individual over half of whose support

was received from the taxpayer.    Eligible individuals who may be

claimed as dependents include a son or daughter of the taxpayer.

In determining whether an individual received over half of his

support from the taxpayer, “there shall be taken into account the

amount of support which the individual received from all sources,

including support which the individual himself supplied.”     Sec.

1.152-1(a)(2)(i), Income Tax Regs.      Petitioner must demonstrate

through competent evidence the total amount of support from all

sources available during the year in issue.      Blanco v.

Commissioner, 56 T.C. 512, 514-515 (1971).      If petitioner fails

to provide this information, this Court cannot conclude that the

taxpayer claiming the exemption provided more than one-half of

the support of the claimed dependent.

     Petitioner testified that Yia Her, the father of her six

children, moved out of her residence in December 2000; that the

three children she claimed as dependents lived with her during

2001; and that the other three children lived with their father,

Mr. Her.    Petitioner also testified that she had never been
                                - 5 -

married to Mr. Her.   Based on the available evidence, it is not

unreasonable for the Court to conclude that Mr. Her, as their

father, provided some support during 2001 for the children who

were living with petitioner.    Since petitioner failed to

demonstrate the total support provided by Mr. Her and herself,

the Court cannot determine whether her contributions constituted

more than half of the total support provided to the children

during 2001.    The Court, therefore, holds that petitioner is not

entitled to the dependency exemption deductions for 2001.

     The Court also agrees with respondent that petitioner is not

entitled to the earned income credit.    Section 32(a) provides for

an earned income credit in the case of an eligible individual.

Section 32(c)(1)(A), in relevant part, defines an “eligible

individual” as an individual who has a qualifying child for the

taxable year.   A qualifying child is one who satisfies a

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

identification requirement.    Sec. 32(c)(3).   In order to satisfy

the residency test, the qualifying child must have the same

principal place of abode as the taxpayer for more than one-half

of the taxable year in which the credit is claimed.    Sec.

32(c)(3)(A)(ii).   Section 32(d) provides, however, that a married

individual, within the meaning of section 7703, may claim the

earned income credit only if a joint return is filed for the

taxable year at issue.
                               - 6 -

     Although petitioner testified that she has never been

married to Mr. Her, she filed a return as married, filing

jointly, with Mr. Her, for the taxable years 1996, 1997, and

2000.   Mr. Her received his Form W-2 statements and unemployment

benefits at petitioner’s residence in 2001.   A 2003 property

transfer record recites that petitioner was a “married woman”.

The evidence leads the Court to conclude that petitioner was

married in 2001, despite her testimony to the contrary.    Under

section 7703(b)(3), a taxpayer who maintains as a home a

household that constitutes the principal place of abode for more

than one-half of the year of a child for whom the taxpayer is

entitled to a deduction under section 151 is deemed to be “not

married” if, during the last 6 months of the year at issue, the

other spouse did not reside with the taxpayer.   As previously

discussed, petitioner did not establish that she maintained a

household or that she is entitled to the dependency exemptions.

Petitioner, therefore, does not satisfy the requirements of

section 7703(b).   The Court holds that petitioner is not entitled

to the earned income credit because she failed to file a joint

return with Mr. Her.

     Section 21(a) generally provides allowance for a credit

against the tax to any individual who maintains a household that

includes as a member one or more qualifying individuals.    The

term “qualifying individual”, under section 21(b), includes a
                               - 7 -

dependent of the taxpayer under age 13, with respect to whom the

taxpayer is entitled to a dependency deduction under section

151(c).   The allowable credit, under section 21(b)(2), generally

is based upon employment-related expenses that are incurred to

enable the taxpayer to be gainfully employed, including expenses

incurred for the care of a qualifying individual.     Petitioner did

not establish either that she maintained a household or that she

incurred employment-related expenses for the children, and, as

the Court holds that she is not entitled to dependency exemption

deductions for the three children, it follows that she is not

entitled to the section 21 child care credit.

     Finally, taxpayers who are allowed a dependency exemption

deduction under section 151 may be allowed a child tax credit

under section 24.   As stated above, the Court sustains

respondent’s determination that petitioner was not entitled to

deduct dependency exemptions for the three children who lived

with her.   Because petitioner is not entitled to the dependency

exemption deductions, she is not entitled to the child tax credit

under section 24.

     Reviewed and adopted as the report of the Small Tax Case

Division.



                                       Decision will be entered

                               for respondent.
