                  T.C. Summary Opinion 2010-111



                     UNITED STATES TAX COURT



                 TESSIE A. MANUEL, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 11748-09S.               Filed August 4, 2010.



     Tessie A. Manuel, pro se.

     Matthew Williams, for respondent.



     PANUTHOS, Chief Special Trial Judge:    This case was heard

pursuant to the provisions of section 7463 of the Internal

Revenue Code in effect when the petition was filed.

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.    Unless otherwise

indicated, subsequent section references are to the Internal
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Revenue Code in effect for the year in issue, and all Rule

references are to the Tax Court Rules of Practice and Procedure.

     Respondent determined a $5,216 deficiency in petitioner’s

2007 Federal income tax.   After concessions1 the issues for

decision are:   (1) Whether petitioner is entitled to dependency

exemption deductions for D.M.2 and S.M.; (2) whether petitioner

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

petitioner is entitled to the child tax credit and additional

child tax credit; and (4) whether petitioner is entitled to an

earned income credit (EIC).

                              Background

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

The stipulation of facts, the supplemental stipulation of facts,

and the attached exhibits are incorporated herein by this

reference.   At the time the petition was filed, petitioner

resided in California.

     Petitioner married Luis Marroquin (Mr. Marroquin) in 2004.

Mr. Marroquin had four children with his first wife.   Two of the

children, D.M. and S.M., resided with Mr. Marroquin in 2007 in


     1
      In the notice of deficiency respondent determined
petitioner’s proper filing status as single. Respondent now
agrees that petitioner is entitled to married filing separate
status. On the basis of petitioner’s taxable income, this
concession will not alter the amount of the deficiency.
     2
      The Court refers to minor children by their initials.    See
Rule 27(a)(3).
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the home he shared with petitioner in California.   D.M. was born

in 1990 and was 17 years old in 2007; S.M. was born in 1992 and

was 15 years old in 2007.   There is no evidence either child

provided any of his or her own support.

     To supplement the family income, petitioner took a job as a

fish processor in Alaska and in 2007 was away from home for 7

months (January-April and June-October).    Although she lived and

worked in Alaska during those months, she sent most of her

earnings to her husband in California to help support the family.

     Petitioner timely filed her 2007 Form 1040, U.S. Individual

Income Tax Return.   On the return she claimed head of household

filing status, two dependency exemption deductions, the child tax

credit and additional child tax credit, and the EIC.    Respondent

issued a notice of deficiency on April 10, 2009, determining a

deficiency of $5,216.   Respondent determined that petitioner is

ineligible for the claimed head of household filing status, the

dependency exemption deductions, the child tax credit and

additional child tax credit, and the EIC.   Petitioner timely

filed a petition in response to the notice of deficiency.

                            Discussion

     In general, the Commissioner’s determination set forth in a

notice of deficiency is presumed correct, and the taxpayer bears

the burden of showing that the determination is in error.    Rule

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

are a matter of legislative grace.      Deputy v. du Pont, 308 U.S.

488, 493 (1940); New Colonial Ice Co. v. Helvering, 292 U.S. 435,

440 (1934).    A taxpayer bears the burden of proving entitlement

to any deduction claimed.    Rule 142(a); INDOPCO, Inc. v.

Commissioner, 503 U.S. 79, 84 (1992); Welch v. Helvering, supra;

Wilson v. Commissioner, T.C. Memo. 2001-139.     A taxpayer is

required to maintain records sufficient to substantiate

deductions claimed on his or her income tax return.     Sec. 6001;

sec. 1.6001-1(a), (e), Income Tax Regs.

     Pursuant to section 7491(a), the burden of proof as to

factual matters shifts to the Commissioner under certain

circumstances.    Petitioner has neither alleged that section

7491(a) applies nor established her compliance with the

substantiation and recordkeeping requirements.     See sec.

7491(a)(2)(A) and (B).    Petitioner therefore bears the burden of

proof.    See Rule 142(a).

I.   Dependency Exemption Deduction

     A.     General

     A taxpayer is entitled to a dependency exemption deduction

only if the claimed dependent is a “qualifying child” or a

“qualifying relative” as defined under section 152(c) and (d).

Sec. 152(a).    A qualifying child is defined as the taxpayer’s

child, brother, sister, stepbrother, or stepsister, or a

descendant of any of them.    Sec. 152(c)(1) and (2).   The term
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“child” includes a legally adopted individual and a foster child

placed in the care of the taxpayer by an authorized placement

agency or by a court order.    Sec. 152(f)(1).

     Petitioner is not a biological parent of either D.M. or

S.M., nor has petitioner adopted either child.       Therefore, D.M.

and S.M. are not petitioner’s qualifying children.

     An individual who is not a qualifying child may, under

certain conditions, qualify as a dependent if he or she is a

qualifying relative.    Sec. 152(a).     Under section 152(d)(1), a

qualifying relative is an individual:       (A) Who bears a qualifying

relationship to the taxpayer; (B) whose gross income for the year

is less than the section 151(d) exemption amount; (C) who

receives over one-half of his or her support from the taxpayer

for the taxable year; and (D) who is not a qualifying child of

the taxpayer or of any other taxpayer for the taxable year.

     To fit within the definition of a qualifying relative, the

individual must satisfy each of the above requirements.       There

are multiple reasons D.M. and S.M. are not petitioner’s

qualifying relatives.

     B.   Section 152(d)(1)(D)

     Section 152(d)(1)(D) requires a qualifying relative to be

neither the taxpayer’s qualifying child nor the qualifying

child of any other taxpayer.    A qualifying child must meet all of

the following requirements:    (1) Bear a relationship to the
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taxpayer such as son or daughter, (2) have the same principal

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

taxable year, (3) be under the age of 19, and (4) not provide

more than one-half of his own support.    Sec. 152(c).   D.M. and

S.M. are qualifying children of Mr. Marroquin because they are

his children, D.M. and S.M. had the same principal place of abode

for more than 6 months with Mr. Marroquin, D.M. and S.M. were 17

and 15 years old, and they did not provide any of their own

support.   Thus D.M. and S.M. meet all four requirements for the

year 2007.   Since D.M. and S.M. are the qualifying children of

Mr. Marroquin, neither can be a qualifying relative for purposes

of petitioner’s claimed dependency exemption deductions.     See

sec. 152(d)(1)(D).

     C.    Section 152(d)(1)(A) and (C)

     Even if the provisions of section 152(d)(1)(D) were

satisfied, D.M. and S.M. would fail to qualify under the

provisions of section 152(d)(1)(A) and (C).    Section 152(d)(2)

lists eight qualifying relationships, seven of which involve

various familial relationships which do not apply to the

circumstances herein.   The eighth type of qualifying relationship

applies to an individual other than the taxpayer’s spouse who has

the same principal place of abode as the taxpayer and is a member

of the taxpayer’s household for the taxable year.    Sec.

152(d)(2)(H).   In order for an individual to be considered a
                                 - 7 -

member of a taxpayer’s household, the taxpayer must maintain the

household and both the taxpayer and the individual must occupy

the household for the entire taxable year.      Sec. 1.152-1(b),

Income Tax Regs.     A temporary absence from the household will not

prevent an individual from being considered as living with the

taxpayer for the entire year.     Id.    A taxpayer maintains a

household when he or she pays more than one-half of the expenses

for the household.    See sec. 2(b); Rev. Rul. 64-41, 1964-1 C.B.

(Part 1) 84, 85.

     Not only did petitioner not occupy the household for 7

months of 2007, but she also has not shown that she maintained

the household.   In order for the Court to determine whether a

taxpayer provided over one-half of the cost of maintaining a

household, the taxpayer must establish the total cost of

maintaining the household.    See Rosen v. Commissioner, T.C. Memo.

1994-40; see also Smith v. Commissioner, T.C. Memo. 2008-229.

Costs of maintaining a household include “property taxes,

mortgage interest, rent, utility charges, upkeep and repairs,

property insurance, and food consumed on the premises.”      Sec.

1.2-2(d), Income Tax Regs.    Mr. Marroquin earned approximately

$40,000 in gross income for 2007 whereas petitioner earned

approximately $23,000.    Although petitioner claimed to have sent

her entire paycheck home, we cannot conclude, on the basis of the

record, that the amount she sent home accounted for more than
                               - 8 -

one-half of the household expenses.     Petitioner did not provide

records proving the household expenses, the amount that she paid

towards those expenses, or that she paid more than one-half of

the total expenses for the household.     Petitioner and Mr.

Marroquin failed to provide testimony that might have sufficed in

this regard.   Therefore, petitioner has not proven that D.M. and

S.M. were qualifying relatives, see sec. 152(d)(1)(A), or that

D.M. and S.M. received more than half of their support from

petitioner, see sec. 152(d)(1)(C).     Accordingly, D.M. and S.M.

are not petitioner’s qualifying relatives under either section

152(d)(1)(A) or (C).

II.   Head of Household Filing Status

      Section 1(b) imposes a special tax rate on an individual

taxpayer who files a Federal income tax return as a head of

household.   Section 2(b) in pertinent part defines a head of

household as an individual taxpayer who:     (1) Is unmarried as of

the close of the taxable year and is not a surviving spouse; and

(2) maintains as his home a household that constitutes for more

than one-half of the taxable year the principal place of abode,

as a member of such household, of a dependent for whom the

taxpayer is entitled to a deduction under section 151.     See also,

e.g., Rowe v. Commissioner, 128 T.C. 13, 16-17 (2007).     The

taxpayer is considered as maintaining a household only if the
                                  - 9 -

taxpayer furnishes over one-half of the cost of maintaining the

household.   Sec. 2(b)(1).

     Petitioner was married in 2007 and has not shown that she

had a dependent or provided evidence to show she maintained the

household.   Petitioner is not entitled to head of household

filing status.

III. Child Tax Credit

     Section 24(a) provides a credit with respect to each

qualifying child of the taxpayer.     Section 24(c)(1) defines the

term “qualifying child” as “a qualifying child of the taxpayer

(as defined in section 152(c)) who has not attained age 17.”3

The child tax credit may not exceed the taxpayer’s regular

tax liability.   Sec. 24(b)(3).    Where a taxpayer is eligible for

the child tax credit, but the taxpayer’s regular tax liability is

less than the amount of the child tax credit potentially

available under section 24(a), section 24(d) makes a portion of

the credit, known as the additional child tax credit, refundable.

     Since D.M. and S.M. are not petitioner’s qualifying

children, petitioner is not entitled to the child tax credit or

the additional child tax credit.




     3
      The credit is reduced by $50 for each $1,000 (or fraction
thereof) by which an individual’s modified adjusted gross income
exceeds specified amounts not relevant herein. Sec. 24(b).
                                - 10 -

IV.   Earned Income Credit

      An eligible individual is entitled to a credit against his

Federal income tax liability, calculated as a percentage

of his earned income, subject to certain limitations.    Sec.

32(a)(1); Rowe v. Commissioner, supra at 15.    Different

percentages and amounts are used to calculate the EIC, depending

on whether the eligible individual has no qualifying children,

one qualifying child, or two or more qualifying children.      Sec.

32(b); Rowe v. Commissioner, supra at 15.    A “qualifying child”

means a qualifying child of the taxpayer as defined in section

152(c).   Sec. 32(c)(3)(A).

      As previously discussed, D.M. and S.M. are not petitioner’s

qualifying children; thus, petitioner is not entitled to the EIC

with two qualifying children for 2007.4

                              Conclusion

      For the reasons discussed herein, petitioner is not entitled

to the claimed dependency exemption deductions, credits, or head

of household filing status.    Respondent’s determination is

therefore sustained.




      4
      Petitioner’s adjusted gross income for 2007 exceeded
$12,590; accordingly she is also ineligible to claim an earned
income credit under sec. 32(c)(1)(A)(ii) as an individual without
a qualifying child. See Rev. Proc. 2006-53, sec. 3.07(1), 2006-2
C.B. 996, 1000.
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To reflect the foregoing,


                                  Decision will be entered

                             for respondent.
