                       T.C. Memo. 2000-140



                     UNITED STATES TAX COURT



               JEAN CLAUDE GUERRIER, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 18505-98.                     Filed April 13, 2000.



     Jean Claude Guerrier, pro se.

     Stephen R. Takeuchi, for respondent.



                       MEMORANDUM OPINION

     WOLFE, Special Trial Judge:     Respondent determined a

deficiency in petitioner’s 1997 Federal income tax of $2,844.

Unless otherwise indicated, section references are to the

Internal Revenue Code in effect for the year in issue.

     The issues for decision are:    (1) Whether petitioner is

entitled to claim a dependency exemption for Chanda A. Jesula
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(Chanda); (2) whether petitioner is entitled to claim head of

household filing status; and (3) whether petitioner is entitled

to an earned income credit (EIC).

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

The stipulation of facts and the attached exhibits are

incorporated herein by this reference.   Petitioner resided in

Tampa, Florida, when the petition in this case was filed.

     Petitioner claimed head of household filing status on his

1997 Federal income tax return.   Petitioner also claimed a

dependency exemption for Chanda and made a claim for an EIC on

which he listed Chanda as his qualifying child.   Petitioner

concedes that he is not Chanda’s biological father.   Instead,

petitioner described Chanda as a foster child on his 1997 Federal

income tax return.   Petitioner reported adjusted gross income of

$11,023.

     Respondent determined that petitioner is not entitled to

head of household filing status, the dependency deduction for

Chanda, or an EIC.

     Section 152(a)(9) defines “dependent” to include an

individual over half of whose support, for the calendar year in

which the taxable year of the taxpayer begins, was received from

the taxpayer, if the individual “has as his principal place of

abode the home of the taxpayer and is a member of the taxpayer’s

household.”   These limitations are applicable in the case of a
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foster child claimed as a dependent.    See sec. 152(b)(2).   To

demonstrate entitlement to the dependency exemption, a taxpayer

must substantiate the amount that he contributed toward the

support of the claimed individual and the total amount spent in

support of the claimed individual.     See Gajda v. Commissioner, 44

T.C. 783, 785 (1965).

     Petitioner contends that in 1997 he gave money to Chanda’s

mother, Carola Jesula, for Chanda’s support.    Petitioner did not

have legal custody of Chanda during 1997.    Moreover, Chanda did

not reside in petitioner’s home during 1997.    Rather, petitioner

concedes that Chanda resided with her mother during 1997.

Accordingly, petitioner’s home was not Chanda’s principal place

of abode during 1997.   Petitioner’s testimony also does not

establish the amount that he contributed toward the support of

Chanda or the total amount spent in support of Chanda.

     On the basis of the foregoing, we hold that petitioner is

not entitled to claim Chanda as a dependent for 1997.

     Petitioner is not entitled to head of household filing

status for 1997.   A taxpayer may be considered a head of

household if, and only if, the taxpayer is not married at the

close of the taxable year and maintains as his or her home a

household which constitutes for more than one-half of such

taxable year the principal place of abode for an unmarried

descendant of the taxpayer or for another person who is a
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dependent of the taxpayer, if the taxpayer is entitled a

deduction for the taxable year for that other person under

section 151.   See sec. 2(b)(1)(A)(i) and (ii).

     As we discussed above, petitioner concedes that Chanda is

not his child and did not reside in his home during 1997.

Accordingly, we hold that petitioner is not entitled to claim

head of household filing status for 1997.

     Petitioner claimed an EIC in the amount of $2,210 on his

1997 Federal income tax return.   In claiming the EIC, petitioner

listed Chanda as a qualifying child.   Section 32(a) generally

provides an eligible individual with an EIC against his or her

income tax liability.   However, section 32(a)(2) limits the

amount of credit allowable to a taxpayer.

     Section 32(a)(2) provides:

          (2) Limitation.--The amount of the credit
     allowable to a taxpayer under paragraph (1) for any
     taxable year shall not exceed the excess (if any) of–-

              (A) the credit percentage of the earned income
           amount, over

              (B) the phaseout percentage of so much of the
           modified adjusted gross income (or, if greater,
           the earned income) of the taxpayer for the
           taxable year as exceeds the phaseout amount.

     In the case of an eligible individual with no qualifying

child, for 1997 the applicable credit percentage and the phaseout

percentage are 7.65, the earned income amount is $4,340, and the

phaseout amount is $5,430.   See sec. 32(b).   Accordingly, an
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eligible individual with no qualifying children is not entitled

to the earned income credit for 1997 if his adjusted gross income

is greater than $9,770.    See sec. 32(a) and (b); see also Rev.

Proc. 96-59, 1996-2 C.B. 392, 394-395.

     Respondent determined that in 1997 petitioner did not have

any qualifying children and that pursuant to the limitation

contained in section 32(a)(2), he is not entitled to an EIC for

1997.   A qualifying child is defined, among other things, as a

son or daughter, stepchild, or foster child of the taxpayer, or a

descendant of such a person, having the same principal place of

abode as the taxpayer for more than one-half of the taxable year,

and who meets the age requirements contained in section

32(c)(3)(C).   See sec. 32(c)(3).

     As discussed above, petitioner is not Chanda’s biological

father.   Moreover, petitioner conceded that Chanda did not reside

in his home during 1997.    Accordingly, we hold that petitioner is

not entitled to an EIC for 1997.

                                             Decision will be entered

                                        for respondent.
