                   T.C. Summary Opinion 2011-90



                     UNITED STATES TAX COURT



               KWAME GONKARNUE BLAH, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 19328-10S.              Filed July 13, 2011.



     Kwame Gonkarnue Blah, pro se.

     Melissa J. Hedtke, for respondent.



     ARMEN, Special Trial Judge:     This case was heard pursuant to

the provisions of section 7463 of the Internal Revenue Code in

effect when the petition was filed.1    Pursuant to section

7463(b), the decision to be entered is not reviewable by any



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

other court, and this opinion shall not be treated as precedent

for any other case.

       Respondent determined a deficiency in petitioner’s 2009

Federal income tax of $6,893.

       After a concession by respondent,2 the issues for decision

are:

       (1)   Whether petitioner is entitled to a dependency

exemption deduction for B.D.W.;

       (2)   whether petitioner is entitled to the earned income

credit for B.L.W. and B.D.W.; and

       (3)   whether petitioner is entitled to the child tax credit

and an additional child tax credit for B.L.W. and B.D.W.

                              Background

       Some of the facts have been stipulated, and they are so

found.     We incorporate by reference the parties’ stipulation of

facts, supplemental stipulation of facts, and accompanying

exhibits.    Petitioner resided in Moorhead, Minnesota, when the

petition was filed.

       During 2009 petitioner lived with his girlfriend and her son

B.L.W.




       2
        Respondent concedes that B.L.W. is a qualifying relative
of petitioner and that petitioner is therefore entitled to a
dependency exemption deduction for B.L.W.
     It is the policy of the Court to refer to minors only by
their initials. See Rule 27(a)(3).
                                - 3 -

     In 2009 petitioner’s sister, Victoria, lived and worked in

Minneapolis, Minnesota, approximately a 4-hour drive from

Moorhead.3   Victoria’s son, B.D.W., had some behavioral problems

in school, so she asked petitioner to allow B.D.W. to live with

him in Moorhead.   Victoria believed that Moorhead would be a

better environment for her son because it was a small town.

Thus, in June 2009 B.D.W. moved in with petitioner in Moorhead,

and in September 2009 B.D.W. enrolled in school in Moorhead.

Victoria also lived with petitioner for a short time in 2009 when

she was unemployed and looking for work.

     On his 2009 Federal income tax return, petitioner claimed

two dependency exemption deductions, the earned income credit

(EIC), and the child tax credit and additional child tax credit

for B.D.W. and B.L.W.   Petitioner reported an adjusted gross

income (AGI) of $14,458.

     On her 2009 Federal income tax return, Victoria reported an

AGI of $34,193.    Victoria did not claim the dependency exemption

deduction for B.D.W.

     In a notice of deficiency, respondent denied the dependency

exemption deductions, the EIC, and the child tax credit and

additional child tax credit.




     3
        According to http://maps.google.com, Moorhead is 233
miles northwest of Minneapolis and depending upon the route is a
3-hour-49-minute to 4-hour-23-minute drive.
                                - 4 -

                             Discussion

A.   Burden of Proof

       Generally, the Commissioner’s determinations are presumed

correct, and the taxpayer bears the burden of proving that those

determinations are erroneous.    Rule 142(a); Welch v. Helvering,

290 U.S. 111, 115 (1933).    Deductions and credits are a matter of

legislative grace, and the taxpayer bears the burden of proof to

establish that he or she is entitled to any deduction or credit

claimed.    Rule 142(a); Deputy v. du Pont, 308 U.S. 488, 493

(1940); New Colonial Ice Co. v. Helvering, 292 U.S. 435, 440

(1934).    Under section 7491(a)(1), the burden of proof may shift

from the taxpayer to the Commissioner if the taxpayer produces

credible evidence with respect to any factual issue relevant to

ascertaining the taxpayer’s liability.      Petitioner did not allege

that section 7491 applies, nor did he introduce the requisite

evidence to invoke that section; therefore, the burden of proof

remains on petitioner.

B.   Dependency Exemption Deduction

       In general, a taxpayer may claim a dependency exemption

deduction “for each individual who is a dependent (as defined in

section 152) of the taxpayer for the taxable year.”      Sec. 151(a),

(c).    Section 152(a) defines a dependent to include a “qualifying

child” or a “qualifying relative.”      As relevant herein, an

individual must meet the following tests in order to be the
                                - 5 -

qualifying child of a taxpayer:    (1) Relationship test; (2)

residency test; (3) age test; and (4) support test.    Sec.

152(c)(1).    Notwithstanding these requirements, section

152(c)(4)(C) provides that if the parents of an individual may

claim the individual as a qualifying child, but no parent does

so, such individual may be claimed as the qualifying child of

another taxpayer but only if the AGI of such taxpayer is higher

than the highest AGI of either parent of the individual.      In

order to be a qualifying relative an individual must not, inter

alia, be a qualifying child of another taxpayer for the year in

issue.    Sec. 152(d)(1)(D).

     Petitioner claims that he is entitled to the dependency

exemption deduction for B.D.W. because he satisfied the

requirements for a qualifying child under section 152(c)(1).       We

commend petitioner for helping his sister by taking in his

nephew.    However, regardless of whether B.D.W. satisfies the

requirements of section 152(c)(1), because Victoria’s AGI (i.e.,

$34,193) was higher than petitioner’s AGI (i.e., $14,458) for

2009, petitioner is not entitled to claim B.D.W. as a qualifying

child.    Furthermore, because B.D.W. is the qualifying child of

Victoria for 2009, B.D.W. is not a qualifying relative of

petitioner.    See sec. 152(d)(1)(D).

     Accordingly, we hold that petitioner is not entitled to the

dependency exemption deduction for B.D.W.
                                 - 6 -

C.   Earned Income Tax Credit

      In the case of an eligible individual, section 32(a)(1)

allows an EIC.     An “eligible individual” includes an individual

who has a qualifying child for the taxable year.      Sec.

32(c)(1)(A)(i).4    A “qualifying child” means a qualifying child

as defined in section 152(c).    Sec. 32(c)(3).    As relevant

herein, section 152(c) provides that a qualifying child means an

individual “who bears a relationship to the taxpayer described in

paragraph (2)”.    Sec. 152(c)(1)(A).    An individual bears a

relationship to a taxpayer for purposes of section 152(c)(1)(A)

if the individual is “a child of the taxpayer or a descendant of

such a child” or “a brother, sister, stepbrother, or stepsister

of the taxpayer or a descendant of any such relative.”       Sec.

152(c)(2).

      As we just concluded, B.D.W. was not a qualifying child of

petitioner for 2009 because B.D.W. was the qualifying child of

petitioner’s sister, Victoria.    See sec. 152(c)(4)(C).     In

addition, B.L.W., petitioner’s girlfriend’s son, does not bear a

specified relationship to petitioner and, thus, is not


      4
        An eligible individual also includes an individual who
does not have a qualifying child. See sec. 32(c)(1)(A)(ii).
However, an EIC is available to such an individual only if his or
her adjusted gross income is less than $13,440. See Rev. Proc.
2008-66, sec. 3.06(1), 2008-45 I.R.B. 1107, 1111. Because
petitioner’s adjusted gross income exceeded that amount in 2009,
petitioner is not entitled to an EIC for that year without a
qualifying child.
                               - 7 -

petitioner’s qualifying child.5   See sec. 152(c)(1)(A), (2).

Therefore, petitioner did not have a qualifying child as defined

in section 152(c) in 2009.

      Accordingly, we hold that petitioner is not entitled to an

EIC for 2009.

D.   Child Tax Credit and Additional Child Tax Credit

      Section 24(a) allows taxpayers a credit against tax imposed

for each qualifying child.   The term “qualifying child” is

defined by section 24(c)(1) to mean a qualifying child of the

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

age of 17.   Section 24(d) provides that a portion of the credit

may be refundable, which portion is commonly referred to as the

additional child tax credit.   As we have previously concluded,

petitioner did not have a qualifying child as defined in section

152(c) in 2009; accordingly, we hold that he is not entitled to a

child tax credit or an additional child tax credit for 2009.

                             Conclusion

      We have considered all of the arguments made by petitioner,

and, to the extent that we have not specifically addressed those




      5
        Although respondent concedes that B.L.W. is a qualifying
relative of petitioner for 2009, B.L.W. must be a qualifying
child of petitioner for purposes of the EIC.
                                 - 8 -

arguments, we conclude that the arguments do not support results

contrary to those reached herein.

     To reflect the foregoing,


                                              Decision will be entered

                                         under Rule 155.
