                  T.C. Summary Opinion 2002-100



                     UNITED STATES TAX COURT



            FREDERICK LEROY McGEE, JR., Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 4928-01S                 Filed July 30, 2002.


     Frederick Leroy McGee, Jr., pro se.

     William R. Shump, 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 years at issue, and all Rule references are to the

Tax Court Rules of Practice and Procedure.
                                - 2 -


     Respondent determined deficiencies in petitioner’s Federal

income taxes for 1997 and 1998 in the amounts of $4,326 and

$2,694, respectively.   The issues for decision are:   (1) Whether

petitioner is entitled to dependency exemption deductions; (2)

whether petitioner is entitled to head of household status; and

(3) whether petitioner is entitled to earned income credits for

the years at issue.

     Some of the facts in this case have been stipulated and are

so found.   The stipulation of facts and the attached exhibits are

incorporated herein by this reference.   At the time the petition

was filed, petitioner lived in Seaford, Delaware.

     Petitioner was married to Karen S. Brittingham (Ms.

Brittingham) in 1976.   Petitioner and Ms. Brittingham had four

children from their marriage:   Ryan Scott McGee (Ryan), born July

28, 1979; Natalie Lauren McGee (Natalie), born January 1, 1983;

Adam Tyler McGee (Adam), born July 11, 1987; and Jordan Kyle

McGee (Jordan), born July 31, 1990 (collectively the children).

     In 1989 or 1990, petitioner and Ms. Brittingham had a four-

bedroom house built for the family (family home).   The family

home was located at 1201 Atlanta Circle, Seaford, Delaware.

     Petitioner and Ms. Brittingham were divorced in 1992.

Pursuant to the Stipulation And Order In Regard To Custody

(custody order), dated May 19, 1993, custody of the children was

to be “held jointly with equal shared placement of the children”.
                                - 3 -


The custody order provided a detailed schedule of placement that

was to operate on 2-week intervals.     The custody order granted

physical placement of the children with petitioner for 3 days in

the first week and 4 days in the second week.     Ms. Brittingham

was granted physical placement of the children for 4 days in the

first week and 3 days in the second week.     This 2-week placement

schedule was to be maintained as long as the custody order was in

effect.    Additionally, the custody order provided that neither

petitioner nor Ms. Brittingham would seek child support payments

from the other.    The custody order was silent as to which parent

could claim dependency exemptions for Federal income tax

purposes.

     Petitioner lived in and maintained the family home after the

divorce.    Petitioner and Ms. Brittingham reached an agreement at

the time of the divorce whereby Ms. Brittingham deeded her

interest in the family home to petitioner.1

     Petitioner began to experience financial difficulties in

1997.    He claimed that the divorce had detrimental effects on his

credit.    Petitioner stopped making mortgage payments on the

family home at the end of 1996 or in early 1997.     The family home

was foreclosed upon in August or September of 1998.     After

relinquishing the family home to foreclosure, petitioner was


     1
          It cannot be determined from the record if the
agreement was a part of or incorporated into the divorce decree.
                                 - 4 -


unable to obtain permanent housing due to his poor credit.     He

stayed in motels and at his parents’ home for the remainder of

1998.

     Petitioner has been employed by various construction

management companies throughout his career.    Petitioner was laid

off from Century Engineering, Inc., in the fall of 1996 and did

not obtain steady employment until the spring of 1997.     He was

employed by the Hackney Group from the spring of 1997 until he

was laid off in December 1997.    Petitioner worked for Capital

Contractors in 1998.

     Ms. Brittingham was employed as a nurse in 1997 and 1998.

For the years at issue, Ms. Brittingham maintained a four-bedroom

home located at 42 Garden Lane, Seaford, Delaware.     Adam and

Jordan lived in Ms. Brittingham’s home when she had custody.

     Petitioner testified that the custody order was strictly

followed, as to all the children, through 1996.     During 1997,

Ryan and Natalie stopped adhering to the custody schedule, both

choosing to live primarily with Ms. Brittingham.2

     Petitioner testified that he maintained the shared placement

schedule as to Adam and Jordan from January 1997 through November

17, 1998.   However, petitioner further testified that Adam and



     2
          For purposes of this opinion, Ryan and Natalie are not
at issue because petitioner did not claim either of these
children as dependents or qualifying children for 1997 and 1998.
                                - 5 -


Jordan spent more time during the summer months at Ms.

Brittingham’s residence.

     On November 17, 1998, a custody hearing was held before the

Family Court of the State of Delaware In and For Sussex County

(Family Court) at Ms. Brittingham’s request.   At the custody

hearing, Ms. Brittingham contended that petitioner had not

complied with the placement schedule in the custody order and

that during 1998, Adam and Jordan lived with her a majority of

the time.   An Order - Motion And Affidavit To Modify Custody,

dated January 19, 1999, granted Ms. Brittingham sole custody and

physical placement of Adam and Jordan.3   Petitioner was granted

visitation on alternate weekends.   Subsequently, the Family Court

ordered petitioner to pay child support retroactive to November

17, 1997.

     On petitioner’s respective 1997 and 1998 Federal income tax

returns, he claimed dependency exemption deductions for Adam and

Jordan, head of household filing status, and earned income

credits.    Petitioner computed the earned income credit claimed on

each return by treating Adam and Jordan as qualifying children.

     Petitioner alleges that an employee in the local office of

the Internal Revenue Service (IRS) advised him that he was



     3
          In the same order, Ms. Brittingham was also granted
sole custody of Natalie. Ryan was emancipated on June 10, 1998;
thus he was not a party to the order.
                              - 6 -


entitled to claim two dependency exemption deductions because the

custody order provided equal placement of the children.

     For the years at issue, respondent disallowed the dependency

exemption deductions because petitioner failed to establish that

he was entitled to the exemptions.    Respondent further determined

that petitioner’s filing status was single, not head of

household, and also disallowed the earned income credits.

     The determinations of the Commissioner in a notice of

deficiency are presumed correct, and the burden is on the

taxpayer to show that the determinations are incorrect.     Rule

142(a); Welch v. Helvering, 290 U.S. 111, 115 (1933).4

Dependency Exemption

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

exemption amount for each dependent of the taxpayer.     Section

152(a)(1) defines the term “dependent” to include a taxpayer’s

child, provided that more than half of the child’s support was

received from the taxpayer during the calendar year.     However,

special rules apply in the case of a child of divorced parents.

See sec. 152(e).

     Pursuant to section 152(e)(1), if a child receives over half



     4
          Sec. 7491 does not apply in this case to shift the
burden of proof to respondent because petitioner neither alleged
that sec. 7491 was applicable nor established that he fully
complied with the substantiation requirements of sec.
7491(a)(2)(A).
                               - 7 -


of his support during the calendar year from divorced parents,

and such child is in the custody of one or both parents for more

than one-half of the calendar year, then such child is treated

for purposes of section 152(a) as receiving over half his support

from the parent having custody for a greater portion of the

calendar year.   For purposes of section 152(e), “custody” in a

split placement arrangement is deemed to be with the parent who

has physical custody of the child for the greater portion of the

calendar year.   Sec. 1.152-4(b), Income Tax Regs.

     Petitioner testified that in 1997 and 1998 he strictly

complied with the custody order, which provided for equal shared

placement of the children between petitioner and Ms. Brittingham.

However, petitioner testified that Adam and Jordan spent more

time at Ms. Brittingham’s residence in the “summertime because

they didn’t want to stay with a baby sitter.”   Petitioner’s

testimony is contradictory as to the amount of time petitioner

had physical custody of Adam and Jordan in 1997 and 1998.   Since

neither of petitioner’s contradicting statements supports the

position that petitioner had physical custody of Adam and Jordan

for a greater portion of 1997 and 1998 than did Ms. Brittingham,

we need not analyze the credibility of petitioner’s testimony on

this issue.

     Assuming, arguendo, that the custody order was strictly

followed in every respect in 1997 and 1998, Adam and Jordan would
                               - 8 -


have been in the physical custody of each parent for exactly half

of each of the years at issue, and not in the custody of

petitioner for a greater portion of either year.

     Petitioner presented no corroborative evidence showing that

he maintained physical custody of Adam and Jordan for a greater

portion of the 1997 or 1998 calendar years than did Ms.

Brittingham.   In fact, petitioner’s own testimony indicates that

Adam and Jordan were in the physical custody of Ms. Brittingham

for a greater portion of time in each of the years at issue.

Petitioner has failed to establish that he has met the custody

requirement under section 152(e), and, accordingly, he is not

treated as having provided over half the support of Adam and

Jordan in each of the years at issue.

     Petitioner’s claim that he is entitled to the dependency

exemption deductions because of the advice of an IRS employee is

without merit.   This Court has previously held that the

authoritative sources of Federal tax law are statutes,

regulations, and judicial case law and not informal IRS sources.

Zimmerman v. Commissioner, 71 T.C. 367, 371 (1978), affd. without

published opinion 614 F.2d 1294 (2d Cir. 1979); Green v.

Commissioner, 59 T.C. 456, 458 (1972).   Additionally, in order to

ensure uniform enforcement of the tax law, the Commissioner must

follow authoritative sources of Federal tax law and may correct

mistakes of law made by IRS agents or employees.   Dixon v. United
                               - 9 -


States, 381 U.S. 68, 72 (1965); Massaglia v. Commissioner, 286

F.2d 258, 262 (10th Cir. 1961), affg. 33 T.C. 379 (1959).   While

it is unfortunate that petitioner may have received unhelpful or

incorrect tax advice from an IRS employee, that advice does not

have the force of law and is not binding on the respondent or

this Court.

     Because there is no corroborating evidence to substantiate

petitioner’s claimed dependency exemption deductions for the

years at issue, we hold that petitioner is not entitled to the

dependency exemption deductions for the 1997 and 1998 taxable

years.   Respondent is sustained on this issue.

Head of Household Status

     According to the relevant part of section 2(b), a taxpayer

shall be considered a head of household if such individual (1) is

not married 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 son or

daughter of the taxpayer.   Sec. 2(b)(1)(A)(i).   Thus, petitioner

must establish that Adam and Jordan lived in petitioner’s home

for more than 6 months in both 1997 and 1998.

     Because we determined above that Adam and Jordan were not in

the physical custody of petitioner for more than half of each

year at issue, petitioner could not have maintained a household

that was Adam and Jordan’s principal place of abode for more than
                              - 10 -


one-half of 1997 or 1998.   Accordingly, petitioner is not

entitled to the head of household filing status claimed for 1997

and 1998.   Respondent is sustained on this issue.

Earned Income Credit

     The relevant parts of section 32 provide that an individual

is eligible for the earned income credit if the individual has a

qualifying child.   A “qualifying child” is one who satisfies a

relationship test, a residency test, and an age test.   See sec.

32(c)(3).

     Pursuant to section 32(c)(3)(A)(ii), the qualifying child

must have the same principal place of abode as the taxpayer for

more than one-half of the taxable year.   Petitioner must show

that Adam and Jordan lived at petitioner’s residence for more

than 6 months in each year at issue.

     As found above, petitioner has failed to establish that Adam

and Jordan had the same principal place of abode as the

petitioner for more than one-half of each taxable year at issue.

Therefore, petitioner does not have a qualifying child for

purposes of the earned income credit for either of the years at

issue.   Accordingly, petitioner is not entitled to the earned

income credits claimed for 1997 and 1998.   Respondent is

sustained on this issue.
                            - 11 -


    Reviewed and adopted as the report of the Small Tax Case

Division.

                                       Decision will be entered

                                  for respondent.
