                  T.C. Summary Opinion 2005-54



                     UNITED STATES TAX COURT



                  NOEL COLSTOCK, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 22258-03S.           Filed April 25, 2005.


     Noel Colstock, pro se.

     Miriam C. Dillard, 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 that the petition was filed.   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.

The decision to be entered is not reviewable by any other court,
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and this opinion should not be cited as authority.

      Respondent determined for 2002 a deficiency in petitioner’s

Federal income tax of $3,494.

      The issues for decision are whether petitioner is entitled

to:   (1) A dependency exemption deduction, (2) the earned income

credit, (3) head of household filing status, and (4) the child

tax credit.

                            Background

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

The stipulation of facts and the exhibits received into evidence

are incorporated herein by reference.    At the time the petition

was filed, petitioner resided in Miami, Florida.

      Although he was married, petitioner filed as head of

household and reported income of $14,605 on his 2002 Federal

income tax return.   Petitioner has a child with Ms. Linda White

Johnson (Ms. Johnson), who is not his wife.   He claimed a

dependency exemption deduction for this daughter, LJ.1   He also

claimed a child tax credit of $171, an earned income credit of

$2,329, and an additional child tax credit of $426.

      Respondent issued a notice of deficiency determining that

petitioner is not entitled to head of household filing status,

the claimed dependency exemption deduction, or any of the credits

applicable to the child for 2002 because he failed to


      1
       The Court only uses the minor child’s initials.
                                 - 3 -

substantiate his claims.



                            Discussion

      Deductions are a matter of legislative grace, and taxpayers

must maintain adequate records to substantiate the amounts of any

deductions or credits claimed.    Sec. 6001; INDOPCO, Inc. v.

Commissioner, 503 U.S. 79, 84 (1992); sec. 1.6001-1(a), Income

Tax Regs.   Taxpayers generally bear the burden of proving that

the Commissioner’s determinations are incorrect.    Rule 142(a);

Welch v. Helvering, 290 U.S. 111 (1933).     Section 7491 does not

apply because petitioner has failed to substantiate his

deductions and provide credible evidence.

1.   Dependency Exemption Deductions

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

amount for each “dependent” as defined in section 152.    As

relevant here, section 152(a) defines a dependent to include a

son or daughter of the taxpayer “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)”.

      To qualify for a dependency exemption deduction, a taxpayer

must establish the total support cost expended on behalf of a

claimed dependent from all sources for the year and demonstrate

that he provided over half of this amount.    See Archer v.
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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.

     The term “support” includes food, shelter, clothing, medical

and dental care, education, and the like.   Sec. 1.152-1(a)(2)(i),

Income Tax Regs.   The total amount of support for each claimed

dependent furnished by all sources during the year in issue must

be established by competent evidence.   Blanco v. Commissioner,

supra at 514; sec. 1.152-1(a)(1), Income Tax Regs.   The amount of

support that the claimed dependent received from the taxpayer is

compared to the total amount of support the claimed dependent

received from all sources.   Sec. 1.152-1(a)(2)(i), Income Tax

Regs.

     Petitioner claims that LJ lived with him for the entire

year.   Petitioner also claims that he provided for LJ by giving

money to her mother, Ms. Johnson.   Petitioner has provided no

evidence at all regarding any amounts he may have expended to

care for LJ.

     The Court sustains respondent’s determination that

petitioner is not entitled to a dependency exemption deduction

for LJ for 2002.

2.   Earned Income Credit

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

income credit against the individual’s income tax liability.     The

credit is calculated as a percentage of the individual’s earned
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income.   Sec. 32(a)(1).   Section 32(a)(2) and (b) limit the

credit allowed based on whether the eligible individual has no

qualifying children, one qualifying child, or two or more

qualifying children.

     Section 32(c)(1)(A)(i), in pertinent part, defines an

“eligible individual” as “any individual who has a qualifying

child for the taxable year”.    A qualifying child includes a son

or daughter of the taxpayer 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)(ii) and (B)(i)(I).

     Ms. Johnson testified that LJ lived with her during 2002 and

that they did not live with petitioner.    Petitioner has failed to

prove that LJ lived with him; therefore, the Court finds that LJ

is not a qualifying child under section 32(c)(3)(A)(ii).

     A taxpayer with no qualifying children may be eligible for

the earned income credit subject to, among other things, the

phaseout limitations of section 32(a)(2).       Merriweather v.

Commissioner, T.C. Memo. 2002-226; Briggsdaniels v. Commissioner,

T.C. Memo. 2001-321.   For 2002, the earned income credit is

completely phased out under section 32(a) for a taxpayer with no

qualifying children if the taxpayer's earned income and adjusted

gross income is more than $5,280 (or $6,280 for married

individuals filing jointly).    See sec. 32(a) and (b).

Petitioner's earned income for 2002 was $14,605.
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      Finally, section 32 requires that a married individual must

file a joint return with the individual's spouse for the year for

which the credit is claimed.    Sec. 32(d); sec. 1.32-2(b)(2),

Income Tax Regs.   For purposes of section 32(a), a taxpayer's

marital status is determined under section 7703.    Section 7703(b)

provides, in pertinent part, that a married person whose spouse

did not live with him for the last 6 months of the taxable year

is not considered as married.    Sec. 7703(b)(3).

      Petitioner testified that during 2002, he was married to a

woman other than Ms. Johnson, but that his wife was not living

with him.   He failed, however, to present any other evidence

other than his oral testimony that his wife did not live with him

during the last 6 months of the year.    The Court, therefore,

concludes that petitioner was married during 2002.    Since

petitioner and his wife did not file a joint return, and

petitioner’s earned income exceeds the phaseout amount, the Court

concludes that he is not entitled to claim an earned income

credit for 2002.

3.   Head of Household Filing Status

     Section 1(b) imposes a special tax rate on individuals

filing as head of household.    As relevant herein, section 2(b)

defines a “head of household” as an unmarried individual who

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

the taxable year constitutes the principal place of abode of an
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unmarried daughter.     Sec. 2(b)(1)(A)(i).

      As a married individual, petitioner is not entitled to claim

head of household filing status for 2002.     Respondent’s

determination is sustained.

4.   Child Tax Credit

     For the taxable year 2002, taxpayers are allowed to claim a

tax credit of $600 for each qualifying child.      Sec. 24(a).   The

plain language of section 24 establishes a three-pronged test to

determine whether a taxpayer has a qualifying child.     If one of

the qualifications is not met, the claimed child tax credit must

be disallowed.   The first element of the three-pronged test

requires that a taxpayer must have been allowed a deduction for

that child under section 151.    Sec. 24(c)(1)(A).

     As stated supra p. 4, the Court has sustained respondent’s

determination that petitioner is not entitled to a dependency

exemption deduction for LJ.    Thus, petitioner fails the first

prong of the test of section 24.    The Court sustains

respondent’s determination regarding the section 24 child tax

credits.

     Reviewed and adopted as the report of the Small Tax Case

Division.

                                      Decision will be entered

                                 for respondent.
