                  T.C. Summary Opinion 2004-133



                     UNITED STATES TAX COURT



                  LOUIS C. JONES, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 15608-03S.            Filed September 27, 2004.


     Louis C. Jones, pro se.

     Michelle Maniscalco, for respondent.


     GOLDBERG, 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.    The decision to be

entered is not reviewable by any other court, and this opinion

should not be cited as authority.   Unless otherwise indicated,

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.
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     Respondent determined a deficiency in petitioner’s Federal

income tax of $3,025 for the taxable year 2002.

     After concessions by both parties, the issues remaining for

decision are: (1) Whether petitioner is entitled to claim a

dependency exemption for his stepson under section 152 for the

taxable year 2002; and (2) whether petitioner is entitled under

section 32(a) to the earned income credit for the taxable year

2002.

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

The stipulation of facts and the attached exhibits are

incorporated herein by this reference.   Petitioner resided in New

York, New York, on the date the petition was filed in this case.

     On February 17, 2003, petitioner filed his 2002 Federal

income tax return.   On this return, petitioner reported head-of-

household filing status, claimed a dependency exemption for his

21-year-old stepson, Christopher K. Bernard (Christopher), and

claimed an earned income credit.   Respondent issued a notice of

deficiency to petitioner determining a deficiency of $3,025 based

on single-filing status.   After issuance of the notice of

deficiency, petitioner filed an amended Federal income tax return

for the year 2002.   In the amended Federal income tax return

petitioner changed his filing status to married filing jointly.

Respondent concedes that petitioner is entitled to married filing

jointly as his filing status, thereby allowing petitioner the
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applicable standard deduction of $7,850 for 2002.     The amended

joint filing entitles petitioner to two personal exemption

deductions, one for himself and one for his wife.     In 2002, the

exemption deduction amount was $3000.

     Christopher was born on October 12, 1981, and turned 21

years old during the year in issue.     During 2002, Christopher

resided in the same place of abode as petitioner, petitioner’s

wife (Christopher’s mother) and other extended family members.

Also in 2002, Christopher did not work but attended some classes

at a “computer school”.   However, he never officially enrolled in

any school or classes.    Christopher was not a full-time student

during the year in issue.

     Petitioner and his family resided in public housing during

the year in issue.   Petitioner paid rent of $147 per month for a

four-bedroom apartment in the Red Hook section of Brooklyn, New

York.

     Petitioner made about $280 a week from his employment as a

security guard.   After petitioner paid the rent, he would give

the rest of the proceeds from his paycheck to his wife who would

buy food and necessities for all the members of the family.

Petitioner no longer controlled any of the financial decisions

once the proceeds were given to his wife.     Petitioner did not

know what was purchased with the proceeds of his check.
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Christopher received an unspecified amount of support from his

father, which was used to buy clothing and other items.

     Petitioner had health insurance coverage from his employment

and medicaid coverage from his past service in the United States

military.   These health insurance plans covered health benefits

for petitioner and his wife; however, they did not cover any

health benefits for Christopher.

Dependency Exemption–-Section 152

     Respondent contends that the change in filing status of

petitioner from single, as determined in the notice of

deficiency, to married filing jointly makes the issue of the

dependency exemption deduction for Christopher moot.

     Under joint filing status, petitioner is able to claim an

additional exemption deduction for his wife and is able to claim

the 2002 standard deduction for such filing of $7,850.

     Petitioner’s adjusted gross income for the year in issue was

$13,398.    Petitioner’s wife did not have any gross income for the

year in issue.   Therefore, their combined adjusted gross income

was $13,398.   The 2002 standard deduction for individuals married

filing jointly was $7,850.   In 2002, taxpayers eligible to file

under married filing jointly status are entitled to a $3,000

deduction for each exemption claimed, which in the present

circumstance would be two exemptions for petitioner and his wife

or $6,000 in exemption deductions.      Therefore, as can be seen by
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the joint adjusted gross income and the deductions that

petitioner and his wife are entitled to, when filing jointly

petitioner and his wife have no taxable income in the year 2002,

even without an exemption deduction for Christopher.     Therefore,

even if petitioner were entitled to a dependency exemption

deduction for Christopher, such a deduction would not reduce his

taxable income.

     Even if this issue had not been made moot by the change in

filing status of petitioner, on this record, petitioner has

failed to establish that he provided more than half of the total

support for Christopher.   See Archer v. Commissioner, 73 T.C.

963, 967 (1980); Blanco v. Commissioner, 56 T.C. 512, 514-515

(1971); sec. 1.152-1(a)(2)(i), Income Tax Regs.

Earned Income Credit–-Section 32

     Petitioner claimed an earned income credit with Christopher

as the qualifying child.   In the notice of deficiency, respondent

disallowed the earned income credit.     Respondent contends that

petitioner is not entitled to an earned income credit under

section 32 for his stepson Christopher, because Christopher was

not a full-time student in 2002.

     Subject to certain limitations, an eligible individual is

allowed a credit which is calculated as a percentage of the

individual’s earned income.   Sec. 32(a)(1).    Earned income

includes wages.   Sec. 32(c)(2)(A).    For the year in issue,
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individuals who do not have any qualifying children, and whose

earned income is $12,0601 or greater, are not entitled to an

earned income credit for that year.     Sec. 32(a) and (b).    An

individual with qualifying children is entitled to a credit at

higher levels of earned income and in a larger amount than is an

individual without qualifying children.     Id.   As is relevant

here, a qualifying child is a child of a taxpayer who has the

same principal place of abode as the taxpayer for more than half

of the taxable year and who meets the age requirements.       Sec.

32(c)(3)(A).    An individual meets the age requirements if such

individual has not attained the age of 19 as of the close of the

calendar year in which the taxable year of the taxpayer begins,

is a student (as defined by section 151(c)(4)) who has not

attained the age of 24 as of the close of such calendar year, or

is permanently and totally disabled at any time during the

taxable year.    Sec. 32(c)(3)(C).

     As discussed above, Christopher had attained the age of 21

in 2002.   Petitioner also conceded that Christopher was not a

full-time student, and, therefore, was not a student as defined

by section 151(c)(4).

     Upon the basis of the record, we hold that Christopher does

not satisfy the requirements for a qualifying child with respect



     1
      This amount was obtained from the 2002 earned income credit
tables prescribed pursuant to sec. 32(f).
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to petitioner and his wife for 2002.    See sec. 32(c)(3)(A)(i)

through (iii) and sec. 32(c)(3), (C)(ii).    Based on their income

and the earned income credit tables prescribed pursuant to

section 32(f), we hold that petitioner and his wife are not

entitled to an earned income credit for 2002.

     Reviewed and adopted as the report of the Small Tax Case

Division.

                                      Decision will be entered

                              under Rule 155.
