                    T.C. Summary Opinion 2009-197



                        UNITED STATES TAX COURT



              DAWN CRYSTAL THOMPSON, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 5555-09S.                Filed December 22, 2009.



     Dawn Crystal Thompson, pro se.

     Anita Gill, for respondent.



     RUWE, Judge:     This case was heard pursuant to the provisions

of section 74631 of the Internal Revenue Code in effect when the

petition was filed.    Pursuant to section 7463(b), the decision to




     1
       Unless otherwise indicated, all section references are to
the Internal Revenue Code as amended and in effect for the year
in issue, and all Rule references are to the Tax Court Rules of
Practice and Procedure.
                                - 2 -

be entered is not reviewable by any other court, and this opinion

shall not be treated as precedent for any other case.

     Respondent determined a deficiency of $6,144 in petitioner’s

2007 Federal income tax.   The issues for decision are:    (1)

Whether petitioner is entitled to dependency exemption deductions

for her nephews, B and R;2 (2) whether petitioner is entitled to

head of household filing status; (3) whether petitioner is

entitled to child tax credits and additional child tax credits

for her nephews B and R; and (4) whether petitioner is entitled

to an earned income 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 this reference.

     At the time the petition was filed, petitioner resided in

Toledo, Ohio.

     Petitioner was not married at the close of 2007.     During

2007 petitioner was gainfully employed and maintained her own

home.    Petitioner filed her 2007 Federal income tax return as a

head of household and claimed dependency exemption deductions for

her two nephews, B and R, and child tax and earned income tax

credits.



     2
       The Court refers to minor children by their initials.       See
Rule 27(a)(3).
                                - 3 -

     Sometime during 2007 petitioner’s sister, C, lost her job in

Cleveland, Ohio, and moved to Toledo, Ohio.    At the time C moved

to Toledo she had four children, was pregnant, was ill and on

medication, and was suffering from depression.    Around the time

that C moved to Toledo, her son, B, who was 11 years old, began

living with petitioner at her residence in Toledo, Ohio.    C’s son

R was born in September 2007.    At the time of R’s birth, C was

unable to care for him, and he resided at petitioner’s home for

the remainder of 2007.    R’s father, who was unemployed, provided

daycare for both B and R.    In addition to providing B and R with

a place to reside, petitioner paid some but not all of the

expenses for their support.    The total living expenses paid on

behalf of B and R by petitioner and others during 2007 is

unknown.

                              Discussion

Dependency Exemptions

     Section 151 allows an exemption amount for each individual

who qualifies as a dependent as defined in section 152.    Section

152(a) provides that a dependent means a qualifying child or a

qualifying relative.    Section 152(c)(1) defines a “qualifying

child” as an individual:

     (A) who bears a relationship to the taxpayer, such as a

niece or nephew of the taxpayer;
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     (B) who has the same principal place of abode as the

taxpayer for more than one-half of such taxable year (aside from

special rules applicable to divorced or separated parents);

     (C) who is under the age of 19 or is a student who has not

attained the age of 24 as of the close of the calendar year; and

     (D) who has not provided over one-half of such individual’s

own support for the calendar year in which the taxable year of

the taxpayer begins.

     Petitioner’s nephews meet the requirements of section

152(c)(1)(A) since they are children of petitioner’s sister.

Petitioner’s nephews also meet the age requirements of section

152(c)(1)(C) and they did not provide over one-half of their own

support as required by section 152(c)(1)(D).    Petitioner’s nephew

R meets the requirement of section 152(c)(1)(B) because after his

birth in September 2007 and for the remainder of 2007 he resided

with petitioner at her residence.3    Therefore, we hold that



     3
       We do not understand respondent to be arguing that in
order to meet the requirements of sec. 152(c)(1)(B) R must have
resided with petitioner for more than 182 days. Rather, we
understand respondent’s position to be consistent with the
Commissioner’s instructions for the 2007 Form 1040, U.S.
Individual Income Tax Return, which state that a person can be a
qualifying child if that person was born during the second half
of the taxable year. Page 15 of the instructions states: “If
the child did not live with you for the required time, see
Exception to time lived with you on page 17.” Page 17 of the
instructions states: “Exception to time lived with you. A
person is considered to have lived with you for all of 2007 if
the person was born or died in 2007 and your home was this
person’s home for the entire time he or she was alive.”
                                - 5 -

petitioner is entitled to a dependency exemption for R.     However,

petitioner has not established exactly when C moved to Toledo or

when B began living at petitioner’s residence and, therefore, has

not proven that B had the same principal place of abode as

petitioner for more than one-half of 2007.

     B might also qualify as a dependent if he is a “qualifying

relative” within the definition of section 152(d), which

provides:

          SEC. 152(d).   Qualifying Relative.--For purposes
     of this section--

                   (1) In general.--The term “qualifying
            relative” means, with respect to any taxpayer
            for any taxable year, an individual--

                      (A) who bears a relationship
                   to the taxpayer described in
                   paragraph (2),

                      (B) whose gross income for
                   the calendar year in which such
                   taxable year begins is less
                   than the exemption amount (as
                   defined in section 151(d)),

                      (C) with respect to whom the
                   taxpayer provides over one-half
                   of the individual’s support for
                   the calendar year in which such
                   taxable year begins, and

                      (D) who is not a qualifying
                   child of such taxpayer or of
                   any other taxpayer for any
                   taxable year beginning in the
                   calendar year in which such
                   taxable year begins.

                   (2) Relationship. For purposes of
            paragraph (1)(A), an individual bears a
                                 - 6 -

            relationship to the taxpayer described in
            this paragraph if the individual is any of
            the following with respect to the taxpayer;

                   *    *    *    *      *   *     *

                      (E) A son or daughter of a
                   brother or sister of the
                   taxpayer.

     Petitioner has not shown that B qualifies under the

requirements of section 152(d)(1)(C) because petitioner has not

established that she provided over one-half of B’s support during

2007.    Therefore petitioner is not entitled to a dependency

exemption for B.

Filing Status

     Under section 2(b)(1)(A) and (3), an individual may file as

head of household if she is a U.S. citizen or resident, is not

married at the close of her taxable year, and maintains as her

home a household which constitutes for more than one-half of such

taxable year the principal place of abode of a qualifying child

or a qualifying relative.

     We have held that R is a qualifying child.        We have also

found that R’s principal place of abode from his birth through

the end of 2007 was petitioner’s home4 and that petitioner meets


     4
       We do not understand respondent to be arguing that in
order to meet the requirements of sec. 2(b) R must have resided
with petitioner for more than 182 days. Rather, we understand
respondent’s position to be consistent with the Commissioner’s
instructions for the 2007 Form 1040, which state that a taxpayer
can qualify for head of household filing status if: “You paid
                                                   (continued...)
                                - 7 -

all of the other qualifications.     Consequently, petitioner is

entitled to head of household filing status for taxable year

2007.

Child Tax Credit and Additional Child Tax Credit

     Section 24(a) provides a credit (subject to certain income

limitations) against income tax for each qualifying child of a

taxpayer.    The term “qualifying child” means a qualifying child

of the taxpayer (as defined in section 152(c)) who has not

attained age 17.    Sec. 24(c)(1).

     It is clear from our prior findings that B was not a

qualifying child and that R was a qualifying child under section

152(c) for purposes of section 24.      Consequently, petitioner is

entitled to the child tax credit and the additional child tax

credit for R for taxable year 2007.

Earned Income Tax Credit

     Petitioner claimed an earned income tax credit on the basis

that both her nephews were qualifying children for taxable year

2007.    Respondent disallowed the credit because he determined

that neither B nor R was a qualifying child.     Section 32(a)


     4
      (...continued)
over half the cost of keeping up a home in which you lived and in
which * * * [a qualifying child] also lived for more than half of
the year (if half or less, see Exception to time lived with you
on this page).” The exception states: “Exception to time lived
with you. * * * If the person for whom you kept up a home was
born or died in 2007, you can still file as head of household as
long as the home was that person’s main home for the part of the
year he or she was alive.”
                                 - 8 -

provides for an earned income tax credit in the case of an

eligible individual.   For a taxpayer to be eligible for the

earned income tax credit on the basis of having a qualifying

child, specific requirements listed in section 32(c) must be met

with respect to each qualifying child.

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

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

taxable year.   Sec. 32(c)(1)(A)(I).      Pursuant to section

32(c)(3)(A), a qualifying child must meet the requirements of

section 152(c).

     On the basis of our prior findings, we hold that B was not a

qualifying child and that R was a qualifying child for purposes

of section 152(c).   Consequently, petitioner is entitled to the

earned income tax credit based on one qualifying child for

taxable year 2007.

     To reflect the foregoing,


                                              Decision will be entered

                                         under Rule 155.
