                  T.C. Summary Opinion 2003-42



                     UNITED STATES TAX COURT



                 JAMES T. REDMAN, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 1919-01S.             Filed April 22, 2003.


     James T. Redman, pro se.

     Edward J. Laubach, Jr., for respondent.



     PANUTHOS, Chief 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.
                                - 2 -

     Respondent determined a deficiency in petitioner’s Federal

income tax of $1,560 for taxable year 1998.    After concessions,1

the issues for decision are:    (1) Whether petitioner qualifies

for head-of-household filing status and (2) whether petitioner’s

daughter is a “qualifying child” with respect to petitioner for

purposes of the earned income credit under section 32.

Background

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

found.    The stipulation of facts and the attached exhibits are

incorporated herein by this reference.    At the time of filing his

petition, petitioner resided in Morgantown, West Virginia.

     Petitioner and Kim Lake are the biological parents of

Justice T. Redman (hereinafter Justice), who was born July 22,

1996.    Petitioner and Kim Lake were not married, nor did they

live in the same household during 1998.

     The Circuit Court of Monongalia County, West Virginia,

entered on December 9, 1998, a court order (Monongalia County

court order) that provided in pertinent part:

          5. * * * [Kim Lake] and * * * [petitioner] will
     follow a joint custody arrangement concerning the minor
     child as follows: * * * [Kim Lake] 60% and * * *
     [petitioner] 40%, or 219 overnights to * * * [Kim Lake]
     and 146 overnights to * * * [petitioner] * * *.


     1
        Respondent concedes that petitioner is entitled to claim
his daughter, Justice T. Redman, as a dependent for the 1998
taxable year. Respondent further concedes that petitioner is
entitled to an earned income credit of $341 for 1998.
                               - 3 -

     On his 1998 Federal income tax return, petitioner claimed

head-of-household filing status.   Petitioner reported wage income

of $5,352 and unemployment compensation of $1,100.    He also

claimed the earned income credit of $1,828, with Justice as a

qualifying child.

     Respondent issued petitioner a notice of deficiency dated

November 3, 2000, determining that:     (1) Petitioner was not

entitled to head-of-household filing status, and (2) petitioner

was not entitled to claim Justice as a qualifying child with

respect to the earned income credit.2    Respondent contends that

petitioner did not maintain the principal place of abode for

Justice for more than one-half of the 1998 taxable year.     Rather,

respondent contends that Kim Lake did so.

     Petitioner contends that the Monongalia County court order,

which granted petitioner 40 percent joint custody, does not apply

to the 1998 taxable year.   Petitioner contends that he and Kim

Lake had a separate arrangement for 1998 in which he would have

custody of Justice for half the week throughout the year, but

that there was no set schedule under this arrangement.




     2
        In the notice of deficiency, respondent also determined
that petitioner was not entitled to a claimed dependency
exemption with respect to Justice. However, as previously
indicated, respondent conceded this issue at the time of trial.
                               - 4 -

Discussion

     The burden of proof is on petitioner to show that he is

entitled to the head-of-household filing status and that Justice

is a “qualifying child” with respect to petitioner for purposes

of the earned income credit under section 32.3   Rule 142(a).

     1.   Filing Status

     An individual taxpayer qualifies as a head of household if

such individual is not married at the close of the taxable year,

is not a surviving spouse, and “maintains as his home a household

which constitutes for more than one-half of such taxable year the

principal place of abode” of a son or daughter of the taxpayer.

Sec. 2(b)(1)(A).

     Petitioner contends that he and Kim Lake had an arrangement

for 1998, separate from the Monongalia County court order, in

which he would have custody of Justice for half the week

throughout the year.   His contention, even if accurate, would not

satisfy the requirement of section 2(b)(1)(A) that a taxpayer

maintain the principal place of abode for his or her child for

“more than one-half” of the taxable year.   In addition,

petitioner’s contention is not supported by the record.    Kim Lake

     3
        Sec. 7491 does not apply to shift the burden of proof to
respondent because petitioner has not established that he
complied with the requirements of sec. 7491(a)(2)(A) and (B) to
substantiate items, maintain required records, and fully
cooperate with respondent’s reasonable requests. In any event,
deciding who has the burden of proof is not determinative of the
outcome of this case.
                                   - 5 -

testified that petitioner had custody of Justice for 2 nights per

week and for a couple of hours every other day throughout the

week.     We found Kim Lake to be a credible witness.     We note that

Kim Lake’s testimony was generally consistent with the terms of

custody set forth in the Monongalia County court order.

Petitioner is not entitled to head-of-household filing status for

the 1998 taxable year.

     2.     Earned Income Credit

     A taxpayer may claim the earned income credit if he or she

is an “eligible individual”.       Sec. 32(a).   The term “eligible

individual” is statutorily defined to include either “any

individual who has a qualifying child for the taxable year” or

“any other individual who does not have a qualifying child for

the taxable year”.     Sec. 32(c)(1)(A).    This definitional

distinction is important because it affects the amount an

eligible individual may claim for the earned income credit.        For

example, an eligible individual with no qualifying child is

entitled to an earned income credit of no more than $341 for the

1998 taxable year, whereas an eligible individual with 1

qualifying child is entitled to no more than $2,271.        Rev. Proc.

97-57, sec. 3.03, 1997-2 C.B. 584, 586.

     Respondent concedes that petitioner is entitled to the

earned income credit, but only to the extent that petitioner is
                                 - 6 -

an eligible individual with no qualifying children.4      In

particular, respondent contends that Justice is not a qualifying

child with respect to petitioner for the 1998 taxable year.        We

agree.

     “The term ‘qualifying child’ means, with respect to any

taxpayer for any taxable year, an individual * * * who has the

same principal place of abode as the taxpayer for more than one-

half of such taxable year”.   Sec. 32(c)(3)(A).     As discussed

above, petitioner has not met his burden of showing that Justice

had the same principal place of abode as petitioner for more than

one-half of the 1998 taxable year.       Accordingly, Justice is not a

“qualifying child” with respect to petitioner for purposes of the

earned income credit under section 32.

     Reviewed and adopted as the report of the Small Tax Case

Division.

     To reflect the foregoing,

                                             Decision will be entered

                                      under Rule 155.




     4
        At the time of trial, respondent conceded that petitioner
was entitled to claim an earned income credit of $341, which is
the maximum amount that could be claimed for the 1998 taxable
year by an eligible individual with no qualifying children. See
Rev. Proc. 97-57, sec. 3.03, 1997-2 C.B. 584, 586. We accept
respondent’s concession.
