                  T.C. Summary Opinion 2002-131



                     UNITED STATES TAX COURT



                  KARL V. MEIER, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 5212-01S.              Filed October 8, 2002.


     Karl V. Meier, pro se.

     Frank W. Louis, for respondent.



     PAJAK, 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 year in issue, and all Rule references are to the

Tax Court Rules of Practice and Procedure.
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     Respondent determined a deficiency in petitioner’s 1999

Federal income tax in the amount of $3,376.   This Court must

decide:   (1) Whether petitioner is entitled to dependency

exemption deductions for his two children; (2) whether petitioner

is entitled to head of household filing status; and (3) whether

petitioner is entitled to the earned income credit.

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

so found.   Petitioner resided in Hobart, New York, at the time he

filed his petition.

     During 1999, Karl V. Meier (petitioner) was employed as a

cook.   He reported wages of $7,875 on his 1999 Federal income tax

return.

     Petitioner has two children, Kaislyn Meier (Kaislyn) and

Naleah Meier (Naleah), with his former wife Nancy Meier (Ms.

Meier).

     On September 7, 1999, petitioner was divorced from Ms.

Meier, by a judgment of divorce from the Supreme Court of the

State of New York, County of Delaware (divorce decree).   A

proceeding was held in connection with the divorce and the

proceeding was incorporated into the divorce decree.   The divorce

decree provided that:   “The parties have agreed to joint physical

custody” of the children.   The custody arrangement generally

provided that petitioner and Ms. Meier would alternate custody of

both children on a weekly basis.   Special arrangements were
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provided for certain holidays, birthdays, and vacations.    The

custody arrangement also provided that petitioner and Ms. Meier

agreed to waive paying each other child support.

     On his 1999 Federal income tax return, petitioner claimed

Kaislyn and Naleah as dependents.   Petitioner filed as head of

household for the taxable year 1999.   He also claimed both

children for purposes of the earned income credit.

     Respondent determined that for the taxable year 1999

petitioner was not entitled to claim Kaislyn and Naleah as

dependents, that his filing status was single rather than head of

household, and that he was not entitled to the earned income

credit.

     Taxpayers generally bear the burden of proving that the

Commissioner’s determination is incorrect.   Rule 142(a); Welch v.

Helvering, 290 U.S. 111 (1933).   Section 7491 does not apply in

this case to place the burden of proof on respondent because

petitioner neither alleged that section 7491 was applicable nor

established that he fully complied with the substantiation

requirements of section 7491(a)(2)(A).

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

exemption amount for each dependent, as defined in section 152.

Section 152(a) provides, in pertinent part, that a dependent

includes an individual, such as a son or daughter, over one-half

of whose support in the taxable year was from the taxpayer or is
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treated as received from the taxpayer under section 152(e).

     Section 152(e) provides special rules for a child whose

parents are either divorced or who live apart at all times for

the last 6 months of the calendar year.   In those situations, the

statute provides that if a child receives over one-half of his or

her support from his or her parents, and if the child is in the

custody of one or both of his or her parents for more than one-

half of the calendar year, then the child is treated for purposes

of section 152(a) as receiving over one-half of his or her

support during the year from the parent having custody for a

greater portion of the calendar year.   Sec. 152(e)(1).   As is

relevant here, “custody” is determined by the terms of the most

recent decree of divorce or separate maintenance agreement, or

subsequent custody decree.   Sec. 1.152-4(b), Income Tax Regs.    In

the event of so-called “split” custody, “custody” will be deemed

to be with the parent who, as between both parents, has the

physical custody of the child for the greater portion of the

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

     Petitioner and Ms. Meier generally followed the divorce

decree and split equally the custody of the two children.    There

is no question but that petitioner and Ms. Meier provided 100

percent of the support of the two children.   However, petitioner

repeatedly was asked by Ms. Meier to keep the children beyond the

allotted time so that he had custody during periods Ms. Meier
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should have had custody.    He was asked to care for the children

when doctor or dentist appointments were required or when they

were sick during periods when they should have been in the

custody of Ms. Meier.   In essence, petitioner had custody for the

weeks he was to have custody under the decree, plus he had

custody of the children for some of the weeks Ms. Meier was

supposed to take care of them.    We are convinced on this record

that petitioner had custody of the children for the greater

portion of 1999.   Under section 152(e) and section 1.152-4(b),

Income Tax Regs., the children are treated as having received

over one-half of their support from petitioner.    Accordingly, we

hold that petitioner is entitled under sections 151(a) and 152(e)

to claim Kaislyn and Naleah as dependents for 1999.

     We next consider whether petitioner is entitled to head of

household filing status for 1999.    Respondent determined that

petitioner’s proper filing status for the taxable year at issue

is single.

     Section 2(b), in relevant part, defines head of household as

an unmarried taxpayer who maintains as his home a household which

constitutes for more than one-half of such taxable year the

principal place of abode of a person who is an unmarried son or

daughter of the taxpayer.   Sec. 2(b)(1)(A)(i).   We have found

that petitioner had physical custody of Kaislyn and Naleah for

the greater portion of 1999.   Accordingly, we hold that
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petitioner is entitled to head of household filing status for the

taxable year in issue.

     Finally, we must consider whether petitioner may claim an

earned income credit under section 32(a)(1) in the amount of

$3,250 for 1999.   Respondent disallowed the earned income credit

on the basis that the two children did not reside with petitioner

for more than one-half of 1999.   As we have found above, the

children resided with petitioner for more than one-half of 1999.

Accordingly, we hold that petitioner is entitled to the claimed

earned income credit under section 32(a).

     Reviewed and adopted as the report of the Small Tax Case

Division.



                                            Decision will be entered

                                       for petitioner.
