                   T.C. Summary Opinion 2006-91



                      UNITED STATES TAX COURT



                RICHARD A. MULLEN, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 5187-05S.                Filed May 30, 2006.



     Richard A. Mullen, pro se.

     Louise R. Forbes, for respondent.



     CARLUZZO, Special Trial Judge:   This case for the

redetermination of a deficiency was heard pursuant to the

provisions of section 7463 of the Internal Revenue Code in effect

at the time the petition was filed.   Unless otherwise indicated,

subsequent section references are to the Internal Revenue Code in

effect for 2003.   The decision to be entered is not reviewable by
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any other court, and this opinion should not be cited as

authority.

     Respondent determined a $1,997.40 deficiency in petitioner’s

2003 Federal income tax.    The issues for decision are:   (1)

Whether petitioner qualifies as a head of household, and (2)

whether petitioner is entitled to treat either of his children as

a qualified child for purposes of the earned income credit.1

                             Background

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

the time the petition was filed, petitioner resided in Shelburne

Falls, Massachusetts.

     Petitioner and Lisa Marie DiBiccari (Ms. DiBiccari) married

on June 29, 1991.    They have two children, both of whom were

minors during the year in issue (the children).

     In June 2002 petitioner, as the tenant, entered into a lease

covering a large house, identified and referred to in the lease

as “the premises”.    Apparently, petitioner and the landlord who

owned the house were involved in a personal relationship.     The

lease provides for a specific amount of rent petitioner was


     1
       Respondent’s pretrial memorandum indicates that
petitioner’s entitlement to the child tax credit is also in
dispute. A careful review of the notice of deficiency, however,
shows that petitioner was allowed a greater child tax credit than
claimed on his return. The additional child tax credit claimed
on petitioner’s return was, contrary to a discussion on the point
during trial, disallowed. The disallowance of the additional
child tax credit is computational and need not be addressed in
this opinion.
                               - 3 -

obligated to pay, part in cash and part through providing

maintenance services to the landlord at the premises.2   The lease

was in effect throughout 2003, and the “premises” referred to in

the lease constituted petitioner’s residence during that year.

According to the lease, petitioner had the “right to use of all

parts of the premises”, as did the landlord.   The lease reflects

the understanding between petitioner and the landlord that

petitioner’s children “will stay at the premises at least 50% of

the year”.

     Petitioner and Ms. DiBiccari apparently separated several

years before the year in issue.   Petitioner is the named

defendant in a Complaint for Divorce filed on September 7, 2000,

by Ms. DiBiccari in the appropriate Massachusetts court (the

divorce proceeding).   A pretrial order issued in 2002 in the

divorce proceeding indicates that petitioner and Ms. DiBiccari

agreed by stipulation that she would have “physical custody” of

the couple’s children; “legal custody” of the children was

identified in the pretrial order as a “contested issue remaining

for resolution”.

     Petitioner and Ms. DiBiccari entered into a separation

agreement dated November 24, 2003, that by its terms was intended

to be incorporated in the divorce decree eventually to be entered



     2
       None of the income reported on petitioner’s 2003 return
reflects this arrangement.
                                - 4 -

in the divorce proceeding.    As relevant here, in the separation

agreement, petitioner and Ms. DiBiccari agreed: (1)      To share

“legal custody” over the children, and (2) that the “children

shall reside primarily” with Ms. DiBiccari.

     The separation agreement gives petitioner “the right to have

the children” for a total of 182 days during the year, which days

are determined by a specific schedule included in the agreement.3

As it turned out, for various reasons petitioner and Ms.

DiBiccari did not strictly adhere to the schedule set forth in

the separation agreement, and at any time during the year the

children, or either of them, might or might not have been where

the schedule suggested each should be.    Petitioner maintained a

calendar on which he recorded the days that each of the children

was with him at his residence, as did Ms. DiBiccari.4     At all

times relevant, for Federal income tax purposes, petitioner and

Ms. DiBiccari considered the latter as the children’s custodial

parent.    See sec. 152(e).

     Petitioner filed his timely 2003 Federal income tax return

as a head of household.    The taxable income and income tax

liability shown on that return take into account the standard

deduction attributable to that filing status.    The refund claimed


     3
       At trial petitioner equated those 182 days during 2003 as
“50% of the time”, which, of course, is not quite right as there
were 365 days during that year.
     4
         Neither calendar was made part of the record.
                                - 5 -

on that return takes into account a $1,509 earned income credit.

On a Schedule EIC, Earned Income Credit, included with

petitioner’s return, petitioner lists each of his children as a

qualifying child for purposes of that credit.

     In the notice of deficiency, respondent changed petitioner’s

filing status from head of household to single and made

adjustments that result from that change.   Respondent also

disallowed the earned income credit claimed on petitioner’s 2003

return.    Other adjustments made in the notice of deficiency are

computational and need not be addressed.

                             Discussion

     According to respondent, petitioner does not qualify as a

head of household for 2003 because during that year his household

did not constitute the principal place of abode for either of his

children for more than one-half of that year.    See sec.

2(b)(1)(A).    For the same reason, respondent takes the position

that petitioner may not treat either of his children as a

qualifying child for purposes of the earned income credit, see

sec. 32(c)(3)(A)(ii), and therefore he is not entitled to that

credit.5




     5
       Although it appears that petitioner was otherwise eligible
for the credit, see sec. 32(c)(1)(A)(ii), without a qualifying
child, the amount of his adjusted gross income for 2003
effectively denies him any credit for that year. See sec. 32(b)
and (f).
                               - 6 -

     According to petitioner, his residence during 2003

constituted the principal place of abode for both of his children

for more than one-half of 2003.   Petitioner testified that during

2003, the children were with him for more days than suggested in

the schedule set forth in the separation agreement.   Ms.

DiBiccari, who was called as a witness by respondent, agreed that

the schedule set forth in the separation agreement was not

honored during 2003, but she testified that the children were at

petitioner’s residence for fewer days than suggested in the

agreement.   When questioned by petitioner during cross-

examination regarding her proof on this point she responded:

“Well, I guess it’s my word against yours”.

     As far as the parties are concerned, the resolution of this

factual dispute effectively resolves the contested issues in this

case.   Apparently, the parties expect that the word “principal,”

as used in the phrase “principal place of abode” in the above-

cited sections should be construed or defined with reference to

time spent at competing locations; i.e., the residence where the

children spent the majority of the year constitutes their

principal place of abode.   Although this is not an unreasonable

expectation, under the circumstances, placing the children at the

residence of either parent on any given day during 2003 is

neither determinative nor illustrative, and is therefore

unnecessary.
                                 - 7 -

     It matters not whether we accept petitioner’s or Ms.

DiBaccari’s version of events.    Under either version, the

children resided with one or the other for slightly more or

slightly less than 50 percent of the year.    Furthermore, to the

extent that the near equal split contemplated in the schedule set

forth in the settlement agreement was upset by minor variances,

those variances might very well be ignored in deciding which

residence was the children’s principal place of abode during

2003.   See sec. 1.2-2(c), Income Tax Regs.

     Obviously, where the children resided during 2003 must be

considered in establishing their principal place of abode for

that year.   Nevertheless, petitioner and Ms. DiBiccari expressly

agreed in the separation agreement that “the children shall

reside primarily” with her.   If the children resided at

petitioner’s residence for a substantially longer portion of

2003, then we would attach little significance to this agreement.

As we view the matter, because time spent by the children at

competing locations was so close to being equal, the above-quoted

express language in the separation agreement constrains us to

find that petitioner’s residence was not the principal place of

abode of either of his children for more than one-half of 2003.

     It follows that petitioner does not qualify as a head of

household and is not entitled to an earned income credit for that

year.   Respondent’s adjustments to that end are sustained.
                                - 8 -

    Reviewed and adopted as the report of the Small Tax Case

Division.

    To reflect the foregoing,



                                        Decision will be entered

                                for respondent.
