                         T.C. Summary Opinion 2020-25



                         UNITED STATES TAX COURT



                DAVID CASIMER BRZYSKI, Petitioner v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent



      Docket No. 22530-17S.                         Filed August 27, 2020.



      David Casimer Brzyski, pro se.

      Joseph P. Benoist and Douglas S. Polsky, for respondent.



                              SUMMARY OPINION


      COPELAND, Judge: This case was heard pursuant to the provisions of

section 7463 of the Internal Revenue Code in effect when the petition was filed.1


      1
      Unless otherwise indicated, all section references are to the Internal
Revenue Code in effect for the year in issue, and all Rule references are to the Tax
                                                                       (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.

In a notice of deficiency dated July 24, 2017, the Internal Revenue Service (IRS or

respondent) determined a $7,816 deficiency in Federal income tax and imposed a

$49 section 6662(a) accuracy-related penalty for petitioner David Casimer

Brzyski’s 2016 tax year.

      After concessions,2 the issues for decision are whether Mr. Brzyski is

entitled to (1) dependency exemptions under section 151(a) and (c) with respect to

the minor children A.D.B.3 and J.N.B.; (2) head of household filing status under

sections 1(b) and 2(b); (3) the child tax credit (including the refundable portion

thereof) under section 24(a) and (d), respectively; and (4) the earned income tax

credit under section 32(a).

                                       Background

      Some facts have been stipulated and are so found. The stipulation of facts

and the attached exhibits are incorporated by this reference. When Mr. Brzyski


      1
      (...continued)
Court Rules of Practice and Procedure, unless otherwise indicated. All dollar
amounts are rounded to the nearest dollar.
      2
          Respondent concedes the accuracy-related penalty.
      3
          Minor children are referred to by their initials. See Rule 27(a)(3).
                                        -3-

timely filed his petition, he resided in Missouri. Daniela Bourne4 is the mother of

A.D.B. and J.N.B. Mr. Brzyski is not the biological or adoptive father of those

children.

      In 2011 Mr. Brzyski and Daniela were residents and domiciliaries of

California. On November 23, 2011, Mr. Brzyski and Daniela flew from California

to Missouri to visit Mr. Brzyski’s family for Thanksgiving. Mr. Brzyski’s mother

lived in Missouri. Over the holiday he and Daniela went to dinner in Kansas by

driving across the Missouri border.

      After the holiday, both flew back to California on November 30, 2011. In

December 2011 Mr. Brzyski referred to Daniela as his fiance in a social media

post. In the years following 2011, on his tax returns filed with the IRS Mr.

Brzyski selected inconsistent filing statuses for himself. Mr. Brzyski timely filed

his 2012 Form 1040EZ, Income Tax Return for Single and Joint Filers With No

Dependents, and claimed the standard deduction and exemption amount for a

“single” filer. He timely filed his 2013 Form 1040, U.S. Individual Income Tax




      4
      Documents in the record refer to A.D.B.’s and J.N.B.’s mother as either
Daniela Bourne or Daniela Brzyski. For clarity, we will refer to the children’s
mother as Daniela.
                                         -4-

Return, selecting “single” filing status.5 He timely filed his 2016 tax return

selecting “head of household” filing status; he signed that return on February 22,

2017.6 In August 2017 he untimely filed his 2015 tax return reverting to “single”

filing status.

I.     Minor Children

       In 2016 A.D.B. was age 7 and J.N.B. was age 11. The children did not

reside with Mr. Brzyski for the full 12 months of 2016. Mr. Brzyski resided and

was domiciled in California until March 2016. He traveled to Missouri in January

2016 to look for work but returned to California in March 2016. Upon his return,

he and Daniela entered into a month-to-month lease in California. In mid-March,

after signing the lease, Mr. Brzyski left California and became a resident and

domiciliary of Missouri. He moved in with his mother at that time and lived with

her until October 2016.7



       5
           We do not have any information regarding tax year 2014.
       6
       Mr. Brzyski attempted to file an amended return for 2016, signed on June
20, 2017, selecting “married filing jointly” filing status. That return is stamped
“amended return considered in audit” but was not accepted or processed by the
IRS.
       7
       Mr. Brzyski and Daniela entered into a lease agreement in Missouri in
October 2016. On the lease agreement Daniela is listed as Daniela Brzyski; she
signed as Daniela Bourne.
                                         -5-

      The children were residents of California until the end of the 2015-16

school year. Daniela received governmental assistance and money sent from Mr.

Brzyski to help pay for the children’s expenses. California school records from

that period indicate that the children resided at their grandfather’s8 address for the

2015-16 school year.9 The children left California and started living in Missouri

sometime between June and October 2016. For the 2016-17 school year Missouri

school records report that the children resided at Mr. Brzyski’s mother’s address.

II.   Petitioner’s Tax Return and Notice of Deficiency

      On his 2016 tax return Mr. Brzyski claimed a dependency exemption for

each of the two minor children (A.D.B. and J.N.B.), head of household status, the

child tax credit including the refundable portion thereof,10 and the earned income

tax credit. The return reported earned income of $16,788 and claimed a refund of

$9,288.



      8
          The grandfather was Daniela’s father.
      9
          The children were also claimed as dependents on the grandfather’s 2016
return.
      10
        As discussed infra p. 15, the refundable portion of the child tax credit is
often referred to as the additional child tax credit. See sec. 24(d). This common
name appears on the 2016 Form 1040 on line 67 as “additional child tax credit.”
Mr. Brzyski had claimed this refundable portion of the child tax credit on his 2016
return.
                                        -6-

      The IRS examined Mr. Brzyski’s Form 1040 for the 2016 tax year and

determined that the two minor children were not his dependents. The IRS

disallowed the two exemptions, head of household status, the child tax credit, and

the earned income tax credit. The IRS froze $7,572 of his refund and on July 24,

2017, mailed him a notice of deficiency.

                                     Discussion

I.    Burden of Proof

      Generally, the Commissioner’s determinations in a notice of deficiency are

presumed correct. Rule 142(a) places the burden of proof on the taxpayer unless

otherwise provided by statute or determined by the Court. See Welch v.

Helvering, 290 U.S. 111, 115 (1933). Deductions and credits are a matter of

legislative grace, and the taxpayer bears the burden of proving the entitlement to

any deduction or credit claimed on a return. INDOPCO, Inc. v. Commissioner,

503 U.S. 79, 84 (1992); New Colonial Ice Co. v. Helvering, 292 U.S. 435, 440

(1934).

      The burden of proof shifts to the Commissioner under certain circumstances

to the extent that a taxpayer comes forth with credible evidence with respect to a

factual issue relevant to ascertaining the taxpayer’s liability. Sec. 7491(a)(1). Mr.
                                          -7-

Brzyski does not contend, nor does the evidence establish, that the burden shifts to

respondent under section 7491(a) as to any issue of fact.

II.      Dependency Exemption

         Section 151(a) and (c) allows taxpayers an exemption for each “dependent”

of a taxpayer as defined in section 152. Section 152(a) sets out a disjunctive

definition of a dependent: The individual must either be a qualifying child as

defined under section 152(c) or a qualifying relative as defined under

section 152(d)(1). See Skitzki v. Commissioner, T.C. Memo. 2019-106, at *5;

see also Konrad v. Commissioner, T.C. Memo. 2010-179, 2010 WL 3119199,

at *1.

         A.    Qualifying Child

         For a taxpayer to claim an individual as a qualifying child under section

152(c), the individual must satisfy five requirements. The individual must:

(1) bear a specified relationship to the taxpayer; (2) have the same principal place

of abode as the taxpayer for more than one-half of the taxable year; (3) be younger

than the taxpayer and not have attained the age of 19 by the close of the taxable

year (or the age of 24 in the case of a student); (4) have not provided over one-half

of his or her own support for the year; and (5) not have filed a joint return with his

or her spouse for the taxable year. Sec. 152(c)(1)-(3); see Skitzki v.
                                         -8-

Commissioner, at *6. If the individual fails any of the five requirements, he or she

will not be considered a qualifying child of the taxpayer. Sec. 152(c)(1)-(3).

      We begin with the specified relationship requirement. Section 152(c)(2)

provides that an individual meets the relationship requirement “if such individual

is--(A) a child of the taxpayer or a descendant of such a child, or (B) a brother,

sister, stepbrother, or stepsister of the taxpayer or a descendant of any such

relative.” A stepchild is included in the term “child”. Sec. 152(f)(1)(A)(i).

      Mr. Brzyski admits he was not the biological or adoptive father of the

children he claimed. Therefore, the aforementioned requirement is satisfied only

if the children were his stepchildren in 2016. Accordingly, the key to whether

A.D.B and J.N.B. meet the relationship requirement, as defined by section 152, is

whether Mr. Brzyski was married to Daniela in 2016. We find he was not.

      Mr. Brzyski contends that he and Daniela entered into a common law

marriage in 2011 when they visited Kansas for dinner.11 State law determines the

marital status of taxpayers for purposes of the Federal tax laws. Von Tersch v.

Commissioner, 47 T.C. 415, 419 (1967). Mr. Brzyski was a resident and

domiciliary of California between 2011 and March 2016; he was a resident and

      11
        Mr. Brzyski claims that over the Thanksgiving holiday he and Daniela
established a common law marriage by driving across the Missouri border to
Kansas and declaring their marriage over dinner.
                                        -9-

domiciliary of Missouri thereafter. Neither California nor Missouri allows for

common law marriage; therefore, Mr. Brzyski had to form the common law

marriage in Kansas. See Cal. Fam. Code sec. 300 (West 2020); Mo. Rev. Stat.

sec. 451.040 (2020); see also Etienne v. DKM Enters., Inc., 186 Cal. Rptr. 321,

322 (Cal. Ct. App. 1982); Doyle v. Doyle, 497 S.W.2d 846, 847 (Mo. Ct. App.

1973). The three factors that constitute a common law marriage in Kansas are:

(1) the two individuals must have the requisite capacity to marry, (2) the

individuals must have a present marriage agreement between themselves, and

(3) the individuals must hold themselves out to the public as husband and wife.

Fleming v. Fleming, 559 P.2d 329, 330-331 (Kan. 1977). In determining the

existence of a common law marriage, Kansas law requires that Mr. Brzyski,

through “substantial” evidence, prove that he and Daniela entered into a common

law marriage. In re Estate of Antonopoulos, 993 P.2d 637, 647-648 (Kan. 1999).

Kansas law further defines substantial evidence as that “such legal and relevant

evidence as a reasonable person might accept as being sufficient to support a

conclusion.” Id. at 648.

      We find that Mr. Brzyski did not meet his burden of proof to establish a

common law marriage with Daniela in Kansas. Mr. Brzyski did not provide any

documentary or other credible support that he or Daniela went to Kansas for the
                                       - 10 -

purpose of marriage, or more importantly, that they entered into a common law

marriage there.12 At trial, Mr. Brzyski could not remember the date of his

proffered common law marriage and provided the Court with inconsistent

documentary support of the date on which he believed he was married.13 In one

affidavit provided at trial Mr. Brzyski and Daniela assert they were married in

Kansas a few days after they flew back to California on November 30, 2011. This

would be factually impossible. The discrepancies between his trial testimony and

the documents provided to this Court were not adequately explained by Mr.

Brzyski. Therefore, Mr. Brzyski did not prove he visited Kansas to marry, let

alone that he had a common law marriage under the laws of that State.

      Furthermore, Mr. Brzyski contradicted himself in his portrayal of his

relationship with Daniela. In December 2011, after the date of the alleged

marriage, Mr. Brzyski referred to Daniela as his fiance on his social media post.


      12
        On the day of trial Mr. Brzyski provided affidavits from his family
members, Daniela, and himself. These were the only documents that showed the
date in which Mr. Brzyski visited Kansas, and they were uncorroborated. Fed. R.
Evid. 802 generally provides that hearsay is inadmissable; however, Fed. R. Evid.
803(3) provides that hearsay may be admitted into evidence to show state of mind.
The affidavits were admitted solely to evaluate Mr. Brzyski’s state of mind as to
the purported marriage.
      13
       More specifically, he signed two separate affidavits that were presented to
the Court. These two affidavits both bear the signature date of April 28, 2017;
however, each shows a different date for the alleged engagement and marriage.
                                        - 11 -

Although he insists he was married, Mr. Brzyski continued to file using “single”

status for the tax years following the date of the alleged marriage. Then, for the

2016 taxable year, Mr. Brzyski filed selecting “head of household” status, which,

as explained infra pp. 14-15, would have meant he was separated from Daniela. It

was not until 2017, when he attempted to file an amended 2016 return, that he

selected married filing joint status. Later that same year, he filed his 2015 return

selecting single filing status. Therefore, even if Mr. Brzyski and Daniela went to

Kansas in 2011, his contradictory portrayal of his marital status hardly satisfies the

three factors that constitute a common law marriage in Kansas. See supra p. 9.

      In sum, Mr. Bryzski has not offered any consistent supporting

documentation that he went to Kansas to marry or that he and Daniela held

themselves out to be husband and wife following their 2011 Thanksgiving trip.

Accordingly, we find that Mr. Brzyski failed to meet his burden of proof to

establish that a common law marriage took place in Kansas.

      Since Mr. Brzyski was neither the biological father, adoptive father, nor

stepfather of the minor children, they did not have any of the required

relationships to him listed under section 152(c)(2). Therefore, he did not satisfy

the relationship requirement and neither A.D.B nor J.N.B. was his qualifying child

for the dependency exemptions reported on the 2016 tax return.
                                         - 12 -

      B.     Qualifying Relative

      Even though Mr. Brzyski did not prove he had qualifying children, that is

not determinative of whether he is entitled to dependency exemptions. See

sec. 152(a). If he instead had a qualifying relative, the claimed deductions may

still be appropriate. Accordingly, we proceed to determine whether the children

were considered “qualifying relatives” with respect to Mr. Brzyski. Section

152(d)(1) provides the requirements for an individual to be a qualifying relative.

To be a qualifying relative to a taxpayer, an individual must: (1) bear a

relationship as defined in section 152(d)(2); (2) receive more than half of the

individual’s support for the taxable year from the taxpayer; (3) have less gross

income than the section 151(d) exemption amount ($4,050 for 2016); and (4) not

be a qualifying child of any other taxpayer. See sec. 152(d)(1). Although the two

children are not related to Mr. Brzyski through any of the first seven of the eight

delineated section 152(d)(2)14 relationship categories that can make someone a

      14
       The first seven categories of familial relationships listed under sec.
152(d)(2) are:

             (A) A child or a descendant of a child.

             (B) A brother, sister, stepbrother, or stepsister.

             (C) The father or mother, or an ancestor of either.
                                                                       (continued...)
                                           - 13 -

taxpayer’s qualifying relative, the eighth category (under section 152(d)(2)(H))

includes an individual who shares a principal place of residence with the taxpayer

and is a member of the taxpayer’s household. The regulations and our caselaw

make clear that this means the individual must reside with the taxpayer for the

entire15 taxable year. Mr. Brzyski admitted that the children did not live with him

for all of 2016. Mr. Brzyski only briefly lived in California in 2016, and the

children did not reside in Missouri until after the end of the 2015-16 school year.

Mr. Brzyski did not provide any records, logs, or receipts showing that the



      14
           (...continued)

                (D) A stepfather or stepmother.

                (E) A son or daughter of a brother or sister of the taxpayer.

                (F) A brother or sister of the father or mother of the taxpayer.

            (G) A son-in-law, daughter-in-law, father-in-law, mother-in-
      law, brother-in-law, or sister-in-law.
      15
        Sec. 1.152-1(b), Income Tax Regs., clarifies that to qualify as a relative of
the taxpayer for sec. 152(d)(2)(H) purposes, the individual must reside with the
taxpayer during the taxpayer’s entire taxable year. Sec. 1.152-1(b), Income Tax
Regs., interprets sec. 152(a)(9) (2000). Sec. 152(a)(9) (2000) is identical to
current sec. 152(d)(2)(H). The regulation has not been amended to reflect the
changes that were enacted by the Working Families Tax Relief Act of 2004,
Pub. L. No. 108-311, sec. 201, 118 Stat. at 1169. However, the Court continues to
rely on the regulation to the extent that it is not inconsistent with sec. 152. See,
e.g., Golit v. Commissioner, T.C. Memo. 2013-191, at *9 n.4.
                                        - 14 -

children resided with him for all of 2016. It is unclear from the record when the

children started residing with Mr. Brzyski before October 2016. Consequently, we

find that the residence requirement has not been satisfied. Therefore the

relationship requirement of section 152(d)(2)(H) has not been satisfied.

      We could end our inquiry there; however, we note that Mr. Brzyski also

failed to establish that he meets the financial support test under section

152(d)(1)(C), as he admitted that he did not provide this Court with any

documentation showing that he provided support for the minor children. He

testified that he sent money to Daniela in 2016 but did not provide any

corroborating documentation. The Court does not accept Mr. Brzyski’s

unsubstantiated self-serving testimony in lieu of documentary evidence. See

Tokarski v. Commissioner, 87 T.C. 74, 77 (1986) (concluding that the Court is not

required to accept uncorroborated or self-serving testimony as reliable and true).

Because Mr. Brzyski could not substantiate his financial support of the children,

we find that he does not meet the financial support requirement. Consequently, we

find that A.D.B. and J.N.B. are not qualifying relatives of Mr. Brzyski.
                                        - 15 -

III.   Head of Household Filing Status

       Among other things, for a taxpayer to claim “head of household” filing

status he or she must be unmarried16 and have a dependent under section 151 or a

qualifying child under section 152(c). Sec. 2(b)(1). As discussed supra pp. 7-14,

Mr. Brzyski does not qualify for any dependency exemption under section 151;

nor can he claim the children as qualified children under section 152(c) for 2016.

Therefore, Mr. Brzyski is not entitled to the filing status “head of household” for

the 2016 taxable year. Moreover, that claim undercuts his prior assertion that he

was living with Daniela in a common law marriage in 2016.

IV.    Child Tax Credit and Additional Child Tax Credit

       The child tax credit provides credit to taxpayers if they have a qualifying

child as defined in section 152(c) that has not attained the age of 17 during the

taxable year. Sec. 24(a), (c). A portion of that credit--commonly referred to as the

additional child tax credit--is refundable. Sec. 24(d). For reasons outlined above,




       16
         The first eligibility requirement for head of household status is that the
taxpayer not be married or a surviving spouse. Sec. 2(b)(1). Exceptions include
situations where the spouses are separated under a decree of divorce or separation,
where one of the spouses is a nonresident alien, or where the spouses live apart for
at least the last six months of the year. See secs. 2(b)(2), (c), 7703(b).
                                        - 16 -

the two minor children are not qualifying children to Mr. Brzyski. See supra

pp. 7-11. Therefore, Mr. Brzyski is not entitled to either the child tax credit or the

additional child tax credit.

V.    Earned Income Tax Credit

      Section 32(a)(1) allows a refundable credit towards the taxpayer’s tax

liability for a taxpayer who has “earned income” for the taxable year. The credit is

subject to a phaseout as described in section 32(a)(2). A taxpayer who has

surpassed the phaseout amount is no longer entitled to the credit. The allowable

earned income in determining the earned income credit increases substantially for

taxpayers with qualifying children. Sec. 32(c)(1)(A). The definition of

“qualifying child” for the purposes of section 32 is the same requirement as

provided in section 152(c). Sec. 32(c)(3)(A). As discussed supra pp. 7-11, Mr.

Brzyski had no qualifying children under section 152(c) for the 2016 tax year.

      Taxpayers without qualifying children are still eligible for the earned

income tax credit if their earned income17 does not exceed $14,880.18 See Rev.


      17
        Earned income is determined by the greater of adjusted gross income or
earned income. Mr. Brzyski’s earned income was greater than his adjusted gross
income. See Rev. Proc. 2015-53, sec. 3.06, 2015-44 I.R.B. 615, 619.
      18
        The revenue procedure lists the “completed phaseout amount” for adjusted
gross income (or, if greater, earned income) at or above which no credit is
                                                                     (continued...)
                                       - 17 -

Proc. 2015-53, sec. 3.06, 2015-44 I.R.B. 615, 619. Mr. Brzyski earned $16,788 in

the 2016 taxable year. This amount is above the cap, and therefore, he is not

entitled to the credit.

VI.    Conclusion

       We conclude that Mr. Brzyski is not entitled to his claimed dependency

exemption, head of household filing status, child tax credit (including the

refundable additional child tax credit portion thereof), or earned income tax credit.

Therefore, we hold for respondent on all points not conceded. In reaching our

decision, we have considered all arguments made, and to the extent not mentioned

above, we conclude they are moot, irrelevant, or without merit.

       To reflect the foregoing,


                                                Decision will be entered for

                                       respondent as to the deficiency and for

                                       petitioner as to the accuracy-related penalty

                                       under section 6662(a).




       18
       (...continued)
allowed. Rev. Proc. 2016-53, sec. 3.06. For 2016, the completed phaseout
amount for single filers is listed as $14,880. Id.
