                  T.C. Summary Opinion 2003-89



                     UNITED STATES TAX COURT



                  TAYLOR BRINSON, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 9846-02S.             Filed July 16, 2003.


     Taylor Brinson, pro se.

     John W. Sheffield, for respondent.



     POWELL, Special Trial Judge:   This case was heard pursuant

to the provisions of section 74631 of the Internal Revenue Code

in effect at the time the petition was filed.    The decision to be

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

should not be cited as authority.

     Respondent determined a deficiency of $4,507 in petitioner’s


1
   Unless otherwise indicated, subsequent section references are
to the Internal Revenue Code in effect for the year in issue.
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2000 Federal income tax.   The issues are whether petitioner is

entitled to (1) dependency exemption deductions for his minor

niece and nephew (the children), (2) an earned income credit

(EIC) for the children, and (3) head of household filing status.

Petitioner resided in Thomson, Georgia, at the time the petition

was filed.

     The facts may be summarized as follows.   During the taxable

year 2000, petitioner resided in a house owned by his parents.

The house was owned free and clear of any mortgage.   It was

occupied by his parents, the children, a sister (not the mother

of the children), and petitioner.   The local probate court

decreed that petitioner’s parents were the legal guardians for

the children.   According to petitioner, his parents, his sister,

and he had separate apartments, but all the utilities for gas,

electric, and water were billed as one unit.   Petitioner did not

pay rent for the apartment he occupied, rather, he paid a portion

of the utility bills for the entire house.

     Petitioner’s mother received welfare payments of

approximately $110 per month for each child.   Petitioner’s father

received Social Security benefits of approximately $1,200 per

month or $14,400 per year.   Petitioner did not know whether his

parents had any other income.   The Social Security benefits were

greater than petitioner’s annual income.   With regard to the

total support for the children, petitioner testified that he
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“really couldn’t say a certain amount.”   Petitioner also produced

no records and does not know the amount of support that he

provided for the children.

     In preparing his 2000 Federal income tax return, petitioner

claimed, with respect to the children, two dependency exemption

deductions and an EIC based on the children’s being his foster

children, and used head of household filing status.    Respondent

disallowed the dependency exemption deductions and the EIC.

Respondent also determined that petitioner’s proper filing status

was single.

Dependency Exemption Deductions

     Petitioner argues that he is entitled to claim dependency

exemption deductions with respect to the children.    Generally,

sections 151 and 152 provide that a taxpayer is entitled to

deduct an exemption for a minor dependent if the taxpayer

provides more than half of the support for the minor dependent.

A son or daughter of a taxpayer’s sister is included in the

definition of a dependent.   Sec. 152(a)(6).   The sole issue with

regard to the dependency exemption deductions claimed by

petitioner is whether petitioner has established that he provided

more than half of the support for the children.2




2
   Sec. 7491 dealing with the burden of proof has no application
to this case because petitioner has not satisfied the
requirements of sec. 7491(a).
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      It is axiomatic that in order to establish that petitioner

provided more than half of the support of the children, he must

establish the amount of the children’s total support and the

amount of support that he provided.      Here, petitioner has

satisfied neither of these prerequisites.      Even if we assume that

petitioner paid the utilities, he has not shown that that amount

constituted more than half of the children’s support.      We sustain

respondent’s disallowance of the dependency exemption deductions.

EIC

      Section 32(a) generally provides eligible individuals with

an EIC against their income tax liability.      An “eligible

individual” is defined as any individual who has a “qualifying

child”.   Sec. 32(c)(1)(A)(i).   A qualifying child includes “an

eligible foster child of the taxpayer.”      Sec.

32(c)(3)(B)(i)(III).   As relevant herein, an eligible foster

child may be, inter alia, a descendant of a brother or sister of

the taxpayer.   Sec. 32(c)(3)(B)(iii)(I).     Section

32(c)(3)(B)(iii) further provides that the taxpayer must care for

the foster child “as the taxpayer’s own child” and the foster

child must have “the same principal place of abode as the

taxpayer for the taxpayer’s entire taxable year.”       While there is

some doubt as to when the children came to the house in which

petitioner resided, we are willing to assume that he did share

the same abode with the children for the 2000 taxable year.
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Nonetheless, we are not willing to assume that he cared for the

children as if they were his own children.    The fact of the

matter is that petitioner’s parents were the legal guardians of

the children, and according to a Temporary Letters of

Guardianship issued by the Probate Court it was their duty “to

see that the ward is adequately fed, clothed, sheltered, educated

and cared for, and that the ward receives all necessary medical

attention.”   While we recognize that petitioner performed some of

these duties, e.g., getting the children to school and, on

occasion, picking them up from school, petitioner’s parents were,

in fact, the foster parents of the children.    We, therefore,

sustain respondent’s determination with respect to the EIC.

Head of Household Filing Status

      Petitioner claims that he maintained, as his household, the

principal place of abode of the children, and, therefore, is

entitled to use the head of household filing status.    Section

2(b) provides the requirements for head of household filing

status.   To qualify as a head of a household a taxpayer must (a)

be unmarried at the end of the taxable year, (b) not be a

surviving spouse, and (c) maintain as the taxpayer’s home a

household that constitutes the principal place of abode of a

dependent for whom the taxpayer is entitled to claim a deduction

under section 151.   Sec. 2(b)(1)(A)(ii).   As we have already

decided that petitioner is not entitled to claim the children as
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his dependents, we sustain respondent’s determination with

respect to this issue.

     Reviewed and adopted as the report of the Small Tax Case

Division.

                                           Decision will be entered

                                      for respondent.
