                        T.C. Memo. 2010-123



                       UNITED STATES TAX COURT



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



     Docket No. 9843-08.               Filed June 7, 2010.



     Richard A. Eichinger, pro se.

     James R. Bamberg, for respondent.



                         MEMORANDUM OPINION


     HALPERN, Judge:    Respondent has determined a deficiency of

$3,500 and an addition to tax of $367 (for late filing) with

respect to petitioner’s 2006 Federal income tax.1   The issues for

decision are whether petitioner is entitled to any dependency



     1
      We round all amounts to the nearest dollar.
                               - 2 -

exemption deduction, any child tax credit, and head of household

filing status, as well as whether petitioner is liable for the

addition to tax.

     Unless otherwise stated, all section references are to the

Internal Revenue Code in effect for 2006, and all Rule references

are to the Tax Court Rules of Practice and Procedure.

     Some facts have been stipulated and are so found.2    The

stipulation of facts, with accompanying exhibits, is incorporated

herein by this reference.   We need find few facts in addition to

those stipulated and shall not, therefore, separately set forth

our findings of fact.

     Petitioner bears the burden of proof as to the deficiency.

See Rule 142(a).3

                            Background

     Petitioner resided in Ohio at the time he filed the

petition.   He and his ex-wife, the parents of two children,



     2
      On brief, petitioner objects to “Respondent’s stipulations
of fact” because they “were hastily obtained while Petitioner was
in stress while preparing for * * * [trial]” the next day. The
stipulation of facts is, in fact, a joint stipulation, executed
by both parties. At trial, the Court asked petitioner whether he
wanted the stipulation to come into evidence. He answered,
without qualification: “Yes.” Petitioner has failed to convince
us that we should not find the stipulated facts.
     3
      Petitioner has not raised the issue of sec. 7491(a), which
shifts the burden of proof to the Commissioner in certain
situations. We conclude that sec. 7491(a) does not apply here
because petitioner has not produced any evidence that he has
satisfied the preconditions for its application.
                                - 3 -

divorced in 2001.   At that time, the divorce court awarded

petitioner’s ex-wife sole custody of the children.

      Petitioner filed his 2006 Federal income tax return on April

26, 2007.    On that return, petitioner claimed two dependency

exemption deductions, a child tax credit, and head of household

filing status.    Respondent disallowed the deductions, the credit,

and that filing status.

                             Discussion

I.   The Dependency Exemption Deductions

      Section 151 allows deductions for personal exemptions.     An

unmarried individual is entitled to a personal exemption for

himself or herself and an additional exemption for each

dependent.   See sec. 151(c).   The term “dependent” is defined in

section 152(a) to include either a “qualifying child” or a

“qualifying relative”.    Those terms are, in turn, defined in

section 152(c) and (d), respectively.     Although petitioner has

filed a brief, he has failed to follow Rule 151(e)(3) and to

provide in his brief “[p]roposed findings of fact * * * based on

the evidence * * * [with] references to the * * * transcript or

the exhibits or other sources relied upon” that would allow us to

conclude that the children were either qualifying children or

qualifying relatives.    Moreover, our own examination of the

record shows no such qualification.     For instance, there is

insufficient evidence that the children lived with petitioner for
                                - 4 -

more than one-half of 2006, see sec. 152(c)(1)(B), and no

evidence directed at the self-support requirement of section

152(c)(1)(D) for that year, both of which petitioner must show to

prove that the children were qualifying children under section

152(c)(1).    Petitioner has also failed to show that the children

would be qualifying children or qualifying relatives under the

special rule for divorced parents found in section 152(e).     Put

simply, petitioner has failed to carry his burden of proving his

entitlement to any dependency exemption deduction.

II.    The Child Tax Credit

       Section 24(a) allows a $1,000 tax credit to a taxpayer for

each “qualifying child”, which, as pertinent to this case, means

“a qualifying child of the taxpayer (as defined in section

152(c)) who has not attained age 17.”     See sec. 24(c)(1).

Because petitioner has failed to show that either of the children

is a qualifying child under section 152(c), he has failed to

prove his entitlement to any child tax credit.

III.    Head of Household Filing Status

       Section 1(b) applies an advantageous tax rate to the taxable

income of an individual who qualifies as “head of a household”.

Compare sec. 1(b) with sec. 1(c) (rate generally applicable to

taxable income of unmarried individuals).     As pertinent to this

case, the term “head of a household” is defined in section

2(b)(1) to mean an individual unmarried at the end of the taxable
                                - 5 -

year who, among other things, “maintains as his home a household

which constitutes for more than one-half of such taxable year the

principal place of abode, as a member of such household, of * * *

[among others] a qualifying child * * * (as defined in sec.

152(c) * * *)”.    For reasons similar to those discussed above,

petitioner has failed to prove his entitlement to head of

household filing status.

IV.   The Failure To File Penalty

      Section 6651(a)(1) provides for an addition to tax in the

event a taxpayer fails to file a timely return (determined with

regard to any extension of time for filing) unless the taxpayer

shows that such failure is due to reasonable cause and not due to

willful neglect.    The amount of the addition is equal to 5

percent of the amount required to be shown as tax on the

delinquent return for each month or fraction thereof during which

the return remains delinquent, up to a maximum addition of 25

percent for returns more than 4 months delinquent.      Id.

      Because petitioner failed to assign error to respondent’s

determination of a section 6651(a)(1) addition to tax, we deem

that issue conceded by petitioner.      See Rule 34(b)(4); see also
                              - 6 -

Funk v. Commissioner, 123 T.C. 213, 215-216 (2004).     In any

event, the facts establish that petitioner filed his 2006 return

late, on April 26, 2007.


                                           Decision will be entered

                                      for respondent.
