                  T.C. Summary Opinion 2004-72



                     UNITED STATES TAX COURT



                  JORGE GALLARDO, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent


     Docket No. 6229-03S.               Filed May 24, 2004.


     Jorge Gallardo, pro se.

     Fred E. Green, for respondent.



     COUVILLION, Special Trial Judge:    This case was heard

pursuant to section 7463 in effect when the petition was filed.1

The decision to be entered in this case is not reviewable by any

other Court, and this opinion should not be cited as authority.

     Respondent determined a deficiency in petitioner's Federal

income tax for the year 2001 in the amount of $2,667 and an


     1
          Unless otherwise indicated, section references
hereafter are to the Internal Revenue Code in effect for the year
at issue.
                                - 2 -


addition to tax under section 6651(a)(1) in the amount of $145.50

for the failure to file the 2001 income tax return timely.    At

trial, respondent conceded the section 6651(a)(1) adjustment.

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

entitled to a dependency exemption deduction under section 151;

(2) whether petitioner is entitled to head-of-household filing

status under section 2(b); (3) whether petitioner is entitled to

the earned income credit under section 32(a); and (4) whether

petitioner is entitled to the child care credit under section 21.

An additional adjustment, reducing the rate reduction credit

claimed by petitioner under section 6428, is a computational

adjustment that is resolved by the Court's holding on the

contested issues.

     Some of the facts were stipulated.    Those facts, with the

exhibits annexed thereto, are so found and are made part hereof.

Petitioner's legal residence at the time the petition was filed

was Las Vegas, Nevada.

     Petitioner married Bertha Alicia Tello (Mrs. Gallardo) on

July 12, 1989.   They had three children of their marriage:   Jorge

A. Gallardo, born on February 4, 1990, Stacy Gallardo, born on

April 6, 1991, and Richard Gallardo, born on July 28, 1996.      At

trial, petitioner was employed as a cage cashier at one of the

casinos in Las Vegas, Nevada.   Mrs. Gallardo was also employed at

a casino during the year at issue.
                                 - 3 -


     On July 20, 2001, petitioner and his wife separated.      She

moved out of the marital premises along with the three children.

Petitioner thereafter filed a Complaint For Divorce in the

District Court, Family Division, Clark County, Nevada, against

his spouse.2    A Decree of Divorce was rendered on February 21,

2002.

     In the divorce decree, the "primary physical custody" of the

three children was awarded to Mrs. Gallardo.     Visitation

privileges for petitioner were provided.    The divorce decree

further provided for payment of child support by petitioner in

the amount of $560 per month and an additional amount of $50 per

month for child care.    The decree further ordered petitioner to

pay $3,920 for "back child support", payable at the rate of $50

per month.     It appears from the record that the "back child

support" represented petitioner's obligation for child support

from the date the parties separated in July 2001 (7 months at

$560 per month) to the date of their divorce.     Petitioner

admitted at trial that he paid no support to his wife and

children from the date Mrs. Gallardo moved out of their

matrimonial domicile in July 2001 until he was ordered to pay


     2
          The evidence conflicts as to the date the complaint was
filed. The acknowledgment or affidavit accompanying the
complaint is dated Oct. 19, 2001; however, the complaint was
filed with the court on Jan. 10, 2002. The different dates are
not material to the issues in the case.
                                 - 4 -


support in the divorce decree.    The divorce decree further

required petitioner to maintain medical and dental insurance for

his children.   No evidence was presented at trial as to whether

petitioner fulfilled this portion of the decree.

     Petitioner filed a Federal income tax return for 2001

claiming head-of-household filing status and one dependency

exemption deduction for his youngest child, Richard Gallardo.      He

claimed an earned income credit of $1,040, with his son Richard

Gallardo as the qualifying child, a child care credit of $600,

and a rate reduction credit under section 6428 in the amount of

$465.

     In the notice of deficiency, respondent disallowed

petitioner's head-of-household filing status and determined he

was married, filing separately.    Respondent also disallowed the

claimed dependency exemption deduction for Richard Gallardo,

disallowed the claimed earned income and child care credits, and

made a computational adjustment reducing the section 6428 rate

reduction credit from $465 to $300.      In his petition to this

Court, petitioner challenges these adjustments.3




     3
          Sec. 7491, in some instances, places the burden of
proof on respondent. However, under sec. 7491(a)(2)(A) and (B),
for the burden to shift, the taxpayer must comply with the
substantiation and record-keeping requirements of the Internal
Revenue Code. Petitioner presented no documentary evidence to
substantiate his claim for the dependency exemption; therefore,
the burden of proof did not shift to respondent.
                                - 5 -


       With respect to the first issue, whether petitioner is

entitled to a dependency exemption deduction, section 151(c)

allows taxpayers to deduct an annual exemption amount for each

dependent as defined in section 152.    Under section 152(a), the

term "dependent" means certain individuals over half of whose

support was received from the taxpayer during the taxable year in

which such individuals are claimed as dependents.    Eligible

individuals who may be claimed as dependents include, among

others, a son or stepson of the taxpayer.    Sec. 152(a)(1) and

(2).    Section 152(e)(1)(A)(iii) further provides an additional

requirement pertinent to the facts of this case that, when the

parents are not divorced or legally separated under a decree of

divorce or separate maintenance, in order for the custodial

parent to be entitled to the dependency exemption deduction, the

parents must have lived apart during the last 6 months of the

taxable year.

       Section 1.152-1(a)(2)(i), Income Tax Regs., provides that,

in determining whether an individual received over half of his

support from the taxpayer, "there shall be taken into account the

amount of support received from the taxpayer as compared to the

entire amount of support which the individual received from all

sources, including support which the individual himself

supplied."    In Blanco v. Commissioner, 56 T.C. 512, 514-515

(1971), this Court held that, in establishing that more than one-
                                - 6 -


half of a dependent's support has been provided, a prerequisite

to such a showing is the demonstration by competent evidence of

the total amount of the dependent's support from all sources for

that year.   If the amount of total support is not established and

cannot be reasonably inferred from competent evidence available

to the Court, it is not possible to conclude that the taxpayer

claiming the exemption provided more than one-half of the support

of the claimed dependent.

     The Court is not satisfied from the evidence that petitioner

provided more than half of the support for his son during the

year at issue.    Petitioner presented no evidence to show the

total support that was provided to the child during 2001 and the

amount he provided to establish that such amount met the one-half

threshold required under section 152(a).    Petitioner and his

former wife were both employed during the year 2001, and it is

logical to assume, and it was not established otherwise, that,

until petitioner and his former wife separated on July 20, 2001,

the support for the son came from petitioner as well as from the

earnings of his former wife.    After July 20, 2001, the child no

longer lived with petitioner.   Petitioner admitted that he

provided no support for the remainder of 2001 to his wife and

three children.    He only resumed support for his children in the

year 2002, when he was ordered to do so by the Nevada divorce
                               - 7 -


court.   The Court holds that petitioner is not entitled to a

dependency exemption deduction for his son for the year 2001.

     With respect to the second issue, section 2(b) provides

generally that an individual shall be considered a head-of-

household if, among other requisites not pertinent here, the

taxpayer is not married at the close of the taxable year, and

such individual maintains as his home a household that

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

principal place of abode, as a member of such household, of an

unmarried son or stepson of the taxpayer.   Sec. 2(b)(1)(A)(i).

However, petitioner was married as of December 31, 2001.   Under

section 7703(b), petitioner, although not divorced as of that

date, could have qualified for head-of-household if, among other

requisites of section 7703(b) not pertinent here, his spouse had

not been a member of petitioner's household during the last 6

months of the tax year at issue.   Petitioner's former wife did

not leave the marital household until July 20, 2001;

consequently, his former spouse was a member of petitioner's

household for a portion of the time in the last 6 months of 2001.

Petitioner, therefore, was married as of the close of the taxable

year 2001 under section 7703(b) and, therefore, does not qualify

for head-of-household filing status.

     Petitioner's sole argument on this issue is that he

maintained his home as a household that constituted, for more
                               - 8 -


than one-half of taxable year 2001 (until July 20, 2001), the

principal place of abode for his son.     While that assertion is

correct, petitioner was married, and, additionally, under section

7703(b), petitioner was considered married as of the end of the

taxable year because his former spouse was a member of

petitioner's household during the last 6 months of taxable year

2001.   Respondent, therefore, is sustained on the head-of-

household issue.

     With respect to the third issue, section 32(a) provides for

an earned income credit in the case of an eligible individual.

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

individual" as an individual who has a qualifying child for the

taxable year.   Sec. 32(c)(1)(A)(i).    A qualifying child is one

who satisfies a relationship test, a residency test, an age test,

and an identification requirement.     Sec. 32(c)(3).    To satisfy

the residency test, the qualifying child must have the same

principal place of abode as the taxpayer for more than one-half

of the taxable year in which the credit is claimed.       Sec.

32(c)(3)(A)(ii).   However, section 32(d) provides that, in the

case of an individual who is married within the meaning of

section 7703, the earned income credit is allowed only if a joint

return is filed for the taxable year in question.       As noted in

the earlier discussion, since petitioner's wife was a member of

his household during the last 6 months of 2001, petitioner was
                                - 9 -


considered married as of December 31, 2001.      Since petitioner did

not file a joint Federal income tax return with his wife for

2001, he is not entitled to the earned income credit.

     The final issue is petitioner's claim to what is generally

referred to as the child care credit.      Section 21(a) generally

provides for a credit against the tax to an individual who

maintains a household that includes as a member one or more

qualifying individuals.   The term "qualifying individual", under

section 21(b)(1), includes a dependent of the taxpayer under age

13, with respect to whom the taxpayer is entitled to a dependency

deduction under section 151(c).   The allowable credit, under

section 21(b)(2), generally is based upon employment-related

expenses that are incurred to enable the taxpayer to be gainfully

employed, including expenses incurred for the care of a

qualifying individual.    Since petitioner is not entitled to the

dependency exemption deduction for his son, he is not entitled to

the child care credit.

     Reviewed and adopted as the report of the Small Tax Case

Division.



                                        Decision will be entered for

                           respondent for the deficiency and for

                           petitioner for the addition to tax.
