                  T.C. Summary Opinion 2006-135



                      UNITED STATES TAX COURT



                 JOHN JOE WILSON, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 21585-04S.              Filed August 29, 2006.



     John Joe Wilson, pro se.

     Michael D. Zima, for respondent.



     WELLS, Judge:   This case was heard pursuant to the

provisions of section 7463 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.   All subsequent section references are to

the Internal Revenue Code in effect for the year in issue, and
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all Rule references are to the Tax Court Rules of Practice and

Procedure.

     Respondent determined a deficiency in Federal income tax of

$4,475 and a section 6651(a)(1) addition to tax of $93.40 for

petitioner’s 2003 taxable year.   The issues we must decide are:

     1.   Whether petitioner is entitled to two dependency

exemptions for taxable year 2003 pursuant to section 151(c);

     2.   whether petitioner may file as head of household for

taxable year 2003;

     3.   whether petitioner is entitled to an earned income

credit for taxable year 2003 pursuant to section 32; and

     4.   whether petitioner is liable for an addition to tax

pursuant to section 6651(a)(1) for failure to timely file his

2003 tax return.

                             Background

     Some of the facts and certain exhibits have been stipulated.

The parties’ stipulations of fact are incorporated in this

opinion by reference and are found as facts in the instant case.

At the time of filing the petition in the instant case,

petitioner resided in Jacksonville, Florida.

     In this opinion, our references to H.C. are to the

biological daughter of petitioner and Scherrlyn Denise Campbell

(Ms. Campbell).    Our references to D.C. are to another child of

Ms. Campbell, who is neither the biological nor adopted son of
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petitioner.   Petitioner and Ms. Campbell have never been married

and did not live together during the year in issue.   Under

penalty of perjury, Ms. Campbell represented to the Jacksonville

Housing Authority and the Jacksonville Department of Children and

Families that H.C. and D.C. lived with her, enabling her to

receive subsidized housing, food stamps, Medicaid, and Social

Security benefits totaling approximately $1,635 per month.1

In addition to those subsidized benefits, Ms. Campbell spent

approximately $450 per month for utilities, rent, and food.

     Ms. Campbell and Derrick Cross (Mr. Cross), who refers to

himself as D.C.’s godfather, are friends.   Because Mr. Cross

occasionally took D.C. shopping and to the movies, Ms. Campbell

gave Mr. Cross D.C.’s Social Security number so that Mr. Cross

could claim a dependency exemption under section 151 and an

earned income credit under section 32 on his 1999 and 2000 tax

returns.   Mr. Cross also claimed a dependency exemption and

earned income credit, using D.C.’s Social Security number, on his

2003 tax return.


     1
      Ms. Campbell’s rent subsidy was $725 per month and she also
received approximately $350 per month in food stamps. The record
shows that Ms. Campbell received, on behalf of H.C.,
approximately $560 per month in Social Security benefits. The
record does not disclose the amount of medicaid benefits received
each month.

     H.C. receives Social Security benefits because H.C. has a
speech impairment and the children receive Medicaid benefits
because H.C. suffers from asthma and D.C. suffers from chronic
bronchitis.
                                - 4 -

     Petitioner worked as a self-employed truck driver during

2003.    During the typical workweek, petitioner made trips to

cities in Georgia, Alabama, and South Florida to pick up loads

and deliver them to the Port of Jacksonville.    Petitioner

generally began his work day at 6 in the morning and returned to

Jacksonville at 5 or 6 in the afternoon the same day.     Because

of a miscommunication with his tax preparer, petitioner untimely

filed his 2003 tax return on May 12, 2004, reporting $11,300 of

net profit from his truck driving business.     On his 2003 return,

petitioner claimed head of household filing status, two section

151(c) dependency exemptions for H.C. and D.C., and a section 32

earned income credit based on H.C. and D.C..2    Respondent

determined that petitioner was not entitled to file as head of

household, or to claim two dependency exemptions and the earned

income credit, and that petitioner was liable for an addition to

tax under section 6651(a)(1) for failure to timely file his 2003

tax return, and respondent sent petitioner a notice of

deficiency.    Petitioner timely petitioned this Court.

                             Discussion

     The Commissioner’s determinations in the notice of

deficiency generally are presumed correct, and the burden of




     2
      Petitioner has conceded that D.C. is not a qualifying child
for purposes of the earned income credit.
                                - 5 -

proving an error is on the taxpayer.3   Rule 142(a); Welch v.

Helvering, 290 U.S. 111, 115 (1933).

     Generally, a taxpayer is allowed an exemption for each

dependent.   Sec. 151(c).   A dependent includes a son or daughter

of the taxpayer who received over half of his or her support

during the calendar year from the taxpayer.   Sec. 152(a)(1).     A

dependent also includes an individual who received over half of

his or her support during the calendar year from the taxpayer,

whose principal place of abode was the same as the taxpayer’s,

and who was a member of the taxpayer’s household.   Sec.

152(a)(9).   To prevail, the taxpayer must show through competent

evidence:    (1) The total support provided for the child or other

individual, and (2) that the taxpayer provided half of such

support.    Blanco v. Commissioner, 56 T.C. 512, 514 (1971).    In

the instant case, petitioner has failed to make the requisite

showing for D.C.   Petitioner’s testimony was vague and unreliable

regarding the amount of support he provided the children.

Petitioner testified:   “I pay for their clothes, the schools,

just about everything they need.”   Ms. Campbell testified that

petitioner spent between $300 to $400 per month per child.      We

find this highly improbable, however, because petitioner only had

$11,300 of income from his trucking business during 2003 out of


     3
      Sec. 7491(a) does not apply in the instant case to shift
the burden of proof to respondent because petitioner did not
raise the issue and also did not comply with the substantiation
and record keeping requirements of sec. 7491(a)(2).
                                - 6 -

which he had to pay for his own living expenses.4   The record

also indicates that H.C. and D.C. receive significant support

from government agencies and D.C. received some support from Mr.

Cross.    Based on the record in the instant case, we conclude that

petitioner alone did not provide over one half of D.C.’s support

during 2003.   In addition, the record shows that D.C.’s principal

place of abode was with Ms. Campbell and not with petitioner.

Accordingly, we hold that petitioner is not entitled to a

dependency exemption for D.C. pursuant to section 152(a).

     In the case of a child who receives over half of his or her

support during the calendar year from his or her parents, who are

divorced, separated, or who live apart during the last 6 months

of the calendar year, the child is treated as receiving over half

of his or her support from the parent having custody for the

greater portion of the calendar year.   Sec. 152(e)(1).   The

special support test in section 152(e)(1) applies to parents who

were never married.    King v. Commissioner, 121 T.C. 245, 251

(2003).   A noncustodial parent may be entitled to a dependency

exemption under section 151 if the noncustodial parent attaches

to his or her tax return a Form 8332, Release of Claim to

Exemption for Child of Divorced or Separated Parents, or similar

written declaration, signed by the custodial parent, stating that

the custodial parent will not claim the child as a dependent for


     4
      Petitioner testified that each month he paid $520 for rent
and $109 for cable television.
                                - 7 -

the calendar year.    Sec. 152(e)(2); Miller v. Commissioner, 114

T.C. 184 (2000).

     Petitioner cannot claim a dependency exemption for D.C.

under section 152(e)(1) because D.C. is not petitioner’s child.

See sec. 152(b)(2).    Even if we were to assume in the instant

case that over half of H.C.’s support came from her parents,

petitioner would still have to show that he had custody of H.C.

for the greater portion of the year because there is no evidence

that petitioner filed a Form 8332 or similar written declaration

signed by Ms. Campbell stating that she would not claim H.C. as

dependent.

     In the instant case petitioner testified that he had custody

of H.C. on weekends and during the summer but did not provide

specific dates.    However, Ms. Campbell represented to the

Jacksonville Housing Authority and the Jacksonville Department of

Children and Families that H.C. and D.C. lived with her, enabling

her to receive subsidized housing, food stamps, Medicaid, and

Social Security benefits totaling approximately $1,635 per month.

Ms. Campbell testified at trial, however, that H.C. lived with

both her and petitioner but that H.C. spent most of the summer

with petitioner.    Ms. Campbell further testified that she and

petitioner’s mother watched H.C. during the day while petitioner

was working.   Petitioner did not call his mother as a witness.

Given the vague, conflicting, and improbable evidence in the
                                 - 8 -

instant case, we hold that petitioner has failed to prove that he

had custody of H.C. for over half of 2003.       Caputi v.

Commissioner, T.C. Memo. 2004-283.       Accordingly, we hold that

petitioner is not entitled to a dependency exemption under

section 152(e).

     We do not need to discuss whether petitioner may file as

head of household pursuant to section 2(b) or whether petitioner

is entitled to a section 32 earned income credit for 2003 because

those sections require the child to have the same principal place

of abode as the taxpayer for more than one half of the taxable

year.5   See secs. 2(b)(1)(A), 32(c)(3).

     Section 6651(a)(1) imposes an addition to tax for a failure

to file an income tax return.    A taxpayer may be relieved of the

addition to tax, however, if he can demonstrate that the “failure

is due to reasonable cause and not due to willful neglect”.           Id.

Willful neglect means intentional failure or reckless

indifference.     United States v. Boyle, 469 U.S. 241, 245 (1985).

Section 301.6651-1(c)(1), Proced. & Admin. Regs., provides that,

if a taxpayer exercises ordinary business care and prudence and

is nevertheless unable to file on time, then the delay is due to

reasonable cause.    Relying on an accountant or tax preparer to

simply file a return on time is not reasonable cause.        United

States v. Boyle, supra at 252.    The Commissioner has the burden


     5
      Petitioner has conceded that D.C. is not a qualifying child
for purposes of the earned income credit
                                 - 9 -

to produce evidence that it is appropriate to impose a relevant

penalty, addition to tax, or additional amount.       Sec. 7491(c);

Higbee v. Commissioner, 116 T.C. 438, 446 (2001).          The

Commissioner, however, does not have the obligation to introduce

evidence regarding reasonable cause.       Id. at 446-447.       In the

instant case it is not disputed that petitioner did not file his

2003 tax return until May 12, 2004.       Petitioner simply failed to

follow up with his return preparer to verify that his return had

been timely filed.   Petitioner’s mere reliance on his return

preparer to timely file his return is not reasonable cause.

United States v. Boyle, supra at 252.       Accordingly, we hold

petitioner is liable for the addition to tax pursuant to section

6651(a)(1).

     To reflect the foregoing,


                                              Decision will be entered

                                         for respondent.
