                      T.C. Summary Opinion 2010-159



                       UNITED STATES TAX COURT



               ROBERT D. DECKER III, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 18497-08S.               Filed October 26, 2010.



     Robert D. Decker III, pro se.

     John M. Janusz, for respondent.



     DEAN, Special Trial 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.   Pursuant to section

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

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

for any other case.   Unless otherwise indicated, subsequent

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

Rules of Practice and Procedure.

     For 2006 respondent determined a deficiency of $3,975 in

petitioner’s Federal income tax.    The issues for decision are:

(1) Whether petitioner is entitled to a dependency exemption

deduction for his daughter; (2) whether petitioner is entitled to

an earned income credit; and (3) whether petitioner is entitled

to a child tax credit and an additional child tax credit.

                           Background

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

The stipulation of facts and the attached exhibits are

incorporated herein by reference.    When petitioner filed his

petition, he resided in New York.

     Petitioner filed his Federal income tax return for 2006

electronically as a head of household.1   He claimed:   (1) A

dependency exemption deduction for his daughter; (2) the earned

income tax credit; and (3) a child tax credit and an additional

child tax credit.

     In 2006 petitioner lived with his wife and two daughters

until September 2006 when his wife (now ex-wife) and their two

daughters moved out of the home.    At that time petitioner was in



     1
      Respondent did not adjust petitioner’s head of household
filing status in the notice of deficiency or assert an increase
in the deficiency in his answer. See sec. 6214(a).
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the process of getting a divorce; however, the divorce was not

finalized until December 2007.    Petitioner filed his 2006 Federal

income tax return claiming a dependency exemption deduction for

one of his daughters.   Petitioner’s ex-wife, however, claimed a

dependency exemption deduction for both of their daughters on her

2006 Federal income tax return.

      Respondent issued to petitioner a notice of deficiency

disallowing:   (1) Petitioner’s claimed dependency exemption

deduction for his daughter; (2) the earned income tax credit; and

(3) the child tax credit and additional child tax credit.

                            Discussion

I.   Burden of Proof

      Generally, the Commissioner’s determinations are presumed

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

determinations are erroneous.2    Rule 142(a)(1); see INDOPCO, Inc.

v. Commissioner, 503 U.S. 79, 84 (1992); 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 proving that he or she is

entitled to any deduction or credit claimed.    Rule 142(a)(1);



      2
      Petitioner has not claimed or shown that he meets the
requirements under sec. 7491(a) to shift the burden of proof to
respondent as to any factual issue relating to his liability for
tax. In any event, the facts are not in dispute, and we decide
the issues on the record before us.
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Deputy v. du Pont, 308 U.S. 488, 493 (1940); New Colonial Ice Co.

v. Helvering, 292 U.S. 435, 440 (1934).

II.   Dependency Exemption Deduction

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

“exemption amount for each individual who is a dependent (as

defined in section 152) of the taxpayer for the taxable year.”

Section 152(a) defines dependent as a “qualifying child” or a

“qualifying relative”.3

      Respondent agrees that petitioner’s daughter meets the

definition of a qualifying child pursuant to section 152(c)(1).

She is petitioner’s daughter, she shared the same principal place

of abode as petitioner for more than one-half of 2006, she met

the age requirements in 2006, and she did not provide over one-

half of her own support in 2006.   Id.

      Although petitioner’s daughter meets the definition of a

qualifying child, certain circumstances apply when more than one

parent claims a child as a qualifying child.   Sec. 152(c)(4)(B).

Under section 152(c)(4)(B), when the parents do not file a joint

return, the child will be treated as the qualifying child of

either the parent with whom the child resided for the longer

period during the taxable year or, if the child resided with both

parents for the same amount of time during such taxable year, the


      3
      Petitioner’s daughter is a “qualifying child” and therefore
is not a “qualifying relative”. See sec. 152(d)(1)(D).
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parent with the higher adjusted gross income.          Petitioner lived

with his ex-wife and two daughters until September 2006.            For the

remainder of 2006 his children did not reside with him but with

his ex-wife.       Petitioner’s children resided with him for a total

of 9 months, and they resided with his ex-wife for a total of 12

months in 2006.       The children resided with his ex-wife for the

longer period during 2006.       Accordingly, she is the only parent

entitled to claim the dependency exemption deduction for 2006.

Respondent’s determination is sustained.

III.       Earned Income Tax Credit

       Section 32(a)(1) allows an eligible individual an earned

income tax credit against that individual’s income tax liability.

The amount of the credit is determined according to the

taxpayer’s qualifying children.         Sec. 32(b).   Under section

32(c)(3)(A), a qualifying child is defined the same as “a

qualifying child of the taxpayer (as defined in section 152(c)

* * * ).”       Petitioner’s daughter is not treated as his qualifying

child for 2006 pursuant to section 152(c)(4).          Therefore,

petitioner is not entitled to claim his daughter as a qualifying

child for purposes of the earned income tax credit under section

32(a)(1).4


       4
      Petitioner’s earned income exceeded $12,120; accordingly,
he is also ineligible to claim an earned income credit under sec.
                                                   (continued...)
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IV.   Child Tax Credit and Additional Child Tax Credit

      Subject to limitations based on adjusted gross income,

section 24(a) provides a credit with respect to each qualifying

child of the taxpayer.   Section 24(c)(1) defines the term

“qualifying child” as a “qualifying child of the taxpayer (as

defined in section 152(c)) who has not attained age 17.”

As discussed above, petitioner’s daughter is not treated as his

qualifying child under section 152(c), and he therefore does not

have a qualifying child for purposes of the child tax credit.

Thus, petitioner is not entitled to the section 24(a) child tax

credit or the section 24(d)(1) additional child tax credit.

      To reflect the foregoing,


                                          Decision will be entered

                                   for respondent.




      4
      (...continued)
32(c)(1)(A)(ii) as an individual without a qualifying child.
Rev. Proc. 2005-70, sec. 3.06(1), 2005-2 C.B. 979, 982
(announcing the specific amount for 2006).
