                  T.C. Summary Opinion 2007-202



                     UNITED STATES TAX COURT



                DIMITRI L. HARRIS, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 26168-06S.              Filed December 3, 2007.



     Dimitri L. Harris, pro se.


     James H. Brunson III, for respondent.


     COUVILLION, 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.1


     1
        Unless otherwise indicated, subsequent section references
are to the Internal Revenue Code in effect for the year at issue.
Sec. 7491 in certain instances shifts the burden of proof to the
Commissioner where the taxpayer introduces credible evidence with
respect to any factual issue relevant to ascertaining the
liability of the taxpayer. However, the burden shifts to the
                                                   (continued...)
                               - 2 -

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.

     Respondent determined a deficiency of $6,211.18 in Federal

income tax for petitioner’s 2005 tax year.

     The issues for decision are whether, for the year 2005,

petitioner is entitled to (1) dependency exemption deductions for

two children under section 151(c); (2) head of household filing

status under section 2(b)(1); (3) the earned income credit under

section 32(a); (4) the child care credit under section 21(a)(1);

and (5) the additional child tax credit under section 24(a).

     Some of the facts were stipulated.    Those facts, with the

exhibits annexed thereto, are so found and are made part hereof.

Petitioner’s legal residence at the time the petition was filed

was Atlanta, Georgia.   For reasons of privacy, the two children

claimed as dependents on petitioner’s 2005 Federal income tax

return are not identified by name and are referred to simply as

the “children”.




     1
      (...continued)
Commissioner only if the taxpayer has complied with all
requirements as to substantiation and has maintained the
necessary books and records with respect to the factual issues.
The burden does not shift to respondent in this case because
petitioner maintained no books and records or any other factual
evidence to establish his entitlement to the principal issue,
entitlement to dependency exemption deductions.
                               - 3 -

     For the year 2005, petitioner timely filed a Form 1040A,

U.S. Individual Income Tax Return.     He filed as a head of

household and reported gross wage and salary income of

$22,694.50.   Petitioner claimed two children as dependents, the

child care credit, the additional child tax credit, and the

earned income credit.   In the notice of deficiency, respondent

determined that petitioner’s filing status was single and

disallowed the two claimed dependency exemption deductions, the

child care credit, the additional child tax credit, and the

earned income credit.

     Petitioner was not married during the year at issue;

however, he lived with a woman and her four children.     Petitioner

was not the father of these children.     On his 2005 return

petitioner claimed two of the children as dependents.     The two

children claimed were born, respectively, in 2000 and 2002.     The

mother of the children was not employed during the year at issue.

On his 2005 return petitioner listed the two children as his

niece and nephew.   Petitioner, however, was not so related to the

children.

     The place where petitioner, the children, and their mother

lived was an apartment which was shared with another tenant.

Petitioner and the co-tenant paid the rent on the apartment.     The

mother of the children, who was unemployed, did not pay any

portion of the rent.
                                   - 4 -

       Sometime after petitioner had filed his 2005 return,

petitioner mailed to the Internal Revenue Service (IRS) two

additional returns for 2005 that were intended to be amended

returns.       On one return, the two children claimed as dependents

were listed as “adopted” children, and on the other return he

again claimed the same two children as dependents but also

claimed their mother as a dependent.       Neither of the two amended

returns was accepted by the IRS.2

Dependency Exemption Deductions

       The first issue is whether petitioner is entitled to claim

dependency exemption deductions for two children of the woman

with whom he lived.       Under section 151(a), a taxpayer may be

entitled to a dependency exemption deduction for each of his or

her dependents.       However, a taxpayer is entitled to claim a

dependency exemption deduction only if the claimed dependent is a

qualifying child or a qualifying relative under section 152(c) or

(d).       Under section 152(c)(1)(A), a qualifying child is a child

who bears a relationship to the taxpayer under section 152(c)(2).

That relationship, for purposes of this case, exists if the

claimed dependent is either a child of the taxpayer or a


       2
        At trial, petitioner explained that the purpose of one of
the amended returns was to clarify that the two claimed dependent
children on the original return were not his niece and nephew,
but because he and the mother of the children were planning to
marry, the two children would be considered “adopted children”
and thus qualify as dependents. The second amended return
included the same two children and also the mother as dependents.
                                - 5 -

descendant of such child, or is a brother, sister, stepbrother,

or stepsister of the taxpayer or a descendant of any such

relative.    Sec. 152(c)(1) and (2).    The two children claimed as

dependents by petitioner do not fall within any of the

relationship requirements of section 152(c) described above since

petitioner and the mother of the children were not married in

2005.    Hence, the children do not qualify as stepchildren of

petitioner.    Therefore, the Court holds that petitioner is not

entitled to the dependency exemption deductions for the two

children of the woman with whom he lived during the year at

issue, and respondent’s determination is sustained.3

Head of Household Filing Status

     The second issue is whether petitioner is entitled to head

of household filing status under section 2(b)(1).




     3
        Sec. 152(a)(2) allows a “qualifying relative” as a
dependent. Sec. 152(d)(2)(H) defines a qualifying relative as an
individual who has the same principal place of abode as the
taxpayer and is a member of the taxpayer’s household. At trial,
petitioner did not assert that the two children were qualifying
relatives, nor did he present any evidence to establish that he
provided more than one-half of the total support for the two
children. Petitioner, the children, and their mother lived in an
apartment in which petitioner was a co-tenant with another
individual. It appears from the record that the cotenant paid at
least half of the rent for the apartment. No evidence was
presented to establish the total amount of support provided to
the two children for the year at issue. A taxpayer who cannot
establish the total amount of support provided to a claimed
dependent generally may not claim that individual as a dependent.
Blanco v. Commissioner, 56 T.C. 512, 514-515 (1971).
                                - 6 -

       Section 1(b) imposes a special tax rate on an individual

filing a Federal income tax return as head of household.     Section

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

who:    (1) Is unmarried at the close of the taxable year; and (2)

maintains as his home a household which constitutes for more than

one-half of the taxable year the principal place of abode of a

qualifying child of the taxpayer or a dependent of the taxpayer

with respect to whom the taxpayer is allowed a dependency

exemption deduction under section 151.    Sec. 2(b)(1)(A).   Since

this Court concludes that the children were not qualifying

children of petitioner as defined in section 152(c) and that

petitioner is not entitled to dependency exemption deductions for

the children under sections 151 and 152(d)(2)(H), it follows that

petitioner is not entitled to head of household filing status.

Respondent’s determination is sustained on this issue.

Earned Income Credit

       The third issue is petitioner’s claim to the earned income

credit under section 32(a).    Section 32(a) provides for an earned

income credit in the case of an eligible individual.    Section

32(c)(1)(A), in pertinent part, defines an “eligible individual”

as an individual who has a qualifying child for the taxable year.

Sec. 32(c)(1)(A)(i).    A qualifying child means a qualifying child

of the taxpayer as defined in section 152(c).    Sec. 32(c)(3).   As

discussed above, petitioner is not entitled to the earned income
                               - 7 -

credit because the two children upon whom petitioner claims the

earned income credit are not qualifying children.   Respondent,

therefore, is sustained on this issue.

Child Care Credit

     The fourth issue is whether petitioner is entitled to claim

the child care credit under section 21(a).

     Section 21(a) generally allows a credit against the tax to

any individual who maintains a household that includes as a

member one or more qualifying individuals.   The term “qualifying

individual”, under section 21(b), includes a dependent of the

taxpayer (as defined in section 152(a)(1)) under age 13.   The

allowable credit, under section 21(b)(2), generally is based upon

employment-related expenses that are incurred to enable the

taxpayer to be gainfully employed, including expenses incurred

for the care of a qualifying individual.   Petitioner is not

entitled to the child care credit for the same reason he is not

entitled to the dependency exemption deductions for the two

children.   Further, petitioner failed to establish that he

incurred employment-related expenses for the care of the children

that enabled him to be employed.   Respondent is sustained on this

issue.
                               - 8 -

Additional Child Tax Credit

     The final issue is whether petitioner is entitled to claim

the additional child tax credit under section 24.

     Section 24(a) authorizes a child tax credit with respect to

each “qualifying child” of the taxpayer.     The term “qualifying

child” is defined in section 24(c).     As relevant to this case, a

qualifying child means a qualifying child as defined in section

152(c) who has not reached the age of 17.     Sec. 24(c)(1).

     Earlier in this opinion, the Court held that the children

were not qualifying children of petitioner as defined in section

152(c).   Accordingly, petitioner is not entitled to the

additional child tax credit under section 24(a).     Respondent is

sustained on this issue.

                                            Decision will be entered

                                       for respondent.
