                     T.C. Summary Opinion 2006-77



                       UNITED STATES TAX COURT



                BRYANT M. HARTFIELD, Petitioner v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 7439-05S.               Filed May 11, 2006.



     Bryant M. Hartfield, pro se.

     James R. Rich, for respondent.



     WELLS, Judge:    This case was heard pursuant to the

provisions of section 7463 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

section references are to the Internal Revenue Code, as amended,

and all Rule references are to the Tax Court Rules of Practice

and Procedure.
                                - 2 -

     Respondent determined a deficiency in petitioner’s 2003

Federal income tax of $2,995.   The issues to be decided are

whether petitioner is entitled to a dependency exemption

deduction, whether petitioner is entitled to head-of-household

filing status, and whether petitioner is entitled to an earned

income credit of $2,547.

                            Background

     Some of the facts are stipulated and are so found.    The

stipulation of facts and the accompanying exhibits are

incorporated herein by reference.

     At the time of filing the petition, petitioner resided in

Columbia, South Carolina.   Petitioner timely filed a 2003 Federal

income tax return, reporting an adjusted gross income of $12,287.

Petitioner reported S.L.B.1 as his daughter and claimed her as a

dependent.   Additionally, petitioner filed as a head of household

and claimed an earned income credit of $2,547.

     S.L.B. is the minor child of Ernestine Bethel, who at all

relevant times resided in Columbia, South Carolina.2   Ernestine

Bethel and petitioner were not married during 2003.    However,

S.L.B. resided with petitioner during the entire 2003 year at the

request of Ernestine Bethel, who was unable to care for the child


     1
      S.L.B. is a minor child to whom the Court refers by her
initials.
     2
      At trial, petitioner testified that S.L.B. was 10 years old
during 2003, and respondent does not contest her age.
                               - 3 -

because of illness.   Consequently, during 2003, petitioner paid

the full costs of supporting S.L.B., including the costs of

housing, clothing, food, personal hygiene, transportation, and

school supplies.3

                            Discussion

     Petitioner contends that he and Ernestine Bethel entered

into a common law marriage before 2003 and, consequently, that

S.L.B. was his stepchild during 2003.    Accordingly, petitioner

contends that he is entitled to a dependency exemption, head-of-

household filing status, and an earned income tax credit.4

     We first address the alleged common law marriage of

Ernestine Bethel and petitioner.5   South Carolina recognizes the

common law marriage of two parties who contract to be married.

Callen v. Callen, 620 S.E.2d 59, 62 (S.C. 2005).    Such an

agreement may be inferred from the facts and circumstances.     Id.

In Callen, the South Carolina Supreme Court stated that the “fact

finder is to look for mutual assent:     the intent of each party to

be married to the other and a mutual understanding of each



     3
      Although S.L.B. remained on the health plan of Ernestine
Bethel, S.L.B. does not appear to have incurred any health-
related expenses during 2003.
     4
      We decide the instant case on the record without regard to
the burden of proof and sec. 7491.
     5
      Petitioner does not contend and has offered no evidence
that he is S.L.B.’s biological father, her adoptive father, her
stepfather, or her foster parent.
                                 - 4 -

party’s intent.”   Id.   Petitioner testified that Ernestine Bethel

and he cohabitated for 9 years before 2003.   However, petitioner

has offered no evidence that Ernestine Bethel intended to be

married to him during that time.    On the contrary, in a written

statement dated August 12, 2004, Ernestine Bethel referred to

petitioner as her “ex-fiancee” rather than as her former spouse.

Consequently, we are unable to conclude from the record that the

requisite mutual assent existed for the creation of a common law

marriage between Ernestine Bethel and petitioner.    Accordingly,

we find that no common law marriage existed and, consequently,

that S.L.B. was not petitioner’s stepchild during 2003.   We now

turn to the claimed dependency exemption deduction, head-of-

household filing status, and earned income credit.

Dependency Exemption Deduction

     Section 151(c) allows a taxpayer to deduct an annual

exemption amount for each dependent of the taxpayer.   Section

152(a) defines “dependent” as follows:6




     6
      We note that the Working Families Tax Relief Act of 2004,
Pub. L. 108-311, sec. 201, 118 Stat. 1169, amended sec. 152,
effective for tax years beginning after Dec. 31, 2004.
                               - 5 -

               SEC. 152(a). General Definition.--For
          purposes of this subtitle, the term “dependent”
          means any of the following individuals over half
          of whose support, for the calendar year in which
          the taxable year of the taxpayer begins, was
          received from the taxpayer (or is treated under
          subsection (c) or (e) as received from the
          taxpayer):

                  *   *    *     *     *    *    *

               (9) An individual * * * who, for the
          taxable year of the taxpayer, has as his
          principal place of abode the home of the
          taxpayer and is a member of the taxpayer’s
          household.

Consequently, an individual may qualify as a “dependent” pursuant

to section 152(a)(9) without being related to the taxpayer.       Sec.

1.152-1(b), Income Tax Regs.

     The record demonstrates that S.L.B.’s principal place of

abode during 2003 was petitioner’s residence and that she was a

member of petitioner’s household.      Moreover, petitioner has

demonstrated that he paid the following amounts in support of

S.L.B. in 2003:

     Rent and utilities1                         $8,400
     Clothing                                     1,100
     Food                                           720
     Personal hygiene                               360
     Transportation                                 600
     School supplies                                100
     Allowance                                      600
     1
      The $8,400 cost of rent and utilities is not
      apportioned between petitioner and S.L.B.

We are satisfied that the aforementioned expenses represent the

total expenditures in support of S.L.B. during 2003.      For the
                                 - 6 -

foregoing reasons, we hold that petitioner is entitled to a

dependency exemption deduction for the 2003 tax year pursuant to

section 152(a)(9).

Head-of-Household Filing Status

     Section 1(b) provides a special tax rate for an individual

filing as a head of household.    As relevant herein, section

2(b)(1) defines “head of household” as an unmarried individual

who maintains as his home a household that for more than one-half

of the year constitutes the principal place of abode of a

dependent of the taxpayer.   However, section 2(b)(3)(B) provides

that a taxpayer is not considered to be a head of household by

reason of an individual who would not be a dependent for the

taxable year but for section 152(a)(9) (relating to persons not

related to the taxpayer).7

     Because petitioner is not related to S.L.B., we conclude

that she would not be a dependent of petitioner but for section

152(a)(9).   Consequently, pursuant to section 2(b)(3)(B), we hold

that petitioner is not entitled to head-of-household filing

status.

Earned Income Credit

     Section 32(a) provides an earned income tax credit to

eligible individuals.   Section 32(b) prescribes different


     7
      The Working Families Tax Relief Act of 2004, sec.
202(b)(2), 118 Stat. 1175, amended sec. 2(b)(3)(B)(i), effective
for tax years beginning after Dec. 31, 2004.
                               - 7 -

percentages and amounts to be used in computing the earned income

credit according to whether the eligible individual has no

qualifying children, one qualifying child, or two or more

qualifying children.

     Section 32(c)(1)(A)(i) provides that a taxpayer qualifies as

an eligible individual if the taxpayer has a qualifying child for

the tax year.8   Section 32(c)(3) defines “qualifying child” as an

individual who bears a relationship to the taxpayer prescribed by

section 32(c)(3)(B) (the relationship test), who meets the age

requirements of section 32(c)(3)(C) (the age test), and who

shares the same principal place of abode as the taxpayer for more

than one-half of the taxable year as prescribed by section

32(c)(3)(A)(ii) (the residency test).9   The record demonstrates

that S.L.B. satisfies the residency test and the age test.

However, because she bears no relationship to petitioner, she

fails to meet the relationship test of section 32(c)(3)(B)(i) and

is not a qualified child of petitioner for purposes of the earned

income credit.

     Section 32(c)(1)(A)(ii) provides that a taxpayer with no

qualifying children may qualify as an eligible individual if the


     8
      The Working Families Tax Relief Act of 2004, sec.
205(b)(1), 118 Stat. 1176, amended sec. 32(c)(1), effective for
tax years beginning after Dec. 31, 2004.
     9
      The Working Families Tax Relief Act of 2004, sec. 205(a),
118 Stat. 1176, amended sec. 32(c)(3), effective for tax years
beginning after Dec. 31, 2004.
                                 - 8 -

taxpayer has a principal place of abode in the United States for

more than one-half of the tax year, is between the ages of 25 and

65 before the close of the tax year, and is not a dependent for

whom a deduction is allowable.    However, with respect to the 2003

tax year, a taxpayer may be eligible under this subsection only

if the taxpayer’s adjusted gross income was less than $11,230.

Rev. Proc. 2002-70, sec. 3.06, 2002-2 C.B. 845, 847.       In the

instant case, petitioner’s adjusted gross income was $12,287.

Consequently, petitioner does not qualify as an eligible

individual pursuant to section 32(c)(1)(A)(ii).

     Because petitioner is not an eligible individual under

either section 32(c)(1)(A)(i) or (ii), we hold that petitioner is

not entitled to an earned income tax credit in 2003.

     In summary, we hold that petitioner is entitled to a

dependency exemption deduction with respect to S.L.B., that

petitioner is not entitled to head-of-household filing status,

and that petitioner is not entitled to an earned income credit.

     To reflect the foregoing,


                                              Decision will be entered

                                         under Rule 155.
