                  T.C. Summary Opinion 2003-37



                     UNITED STATES TAX COURT



                 LAKIM LOVE ALLAH, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 12913-01S.              Filed April 18, 2003.



     Lakim Love Allah, pro se.

     Patricia A. Riegger, for respondent.



     DINAN, 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
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effect for the year in issue, and all Rule references are to the

Tax Court Rules of Practice and Procedure.

     Respondent determined a deficiency in petitioner’s Federal

income tax of $3,717 for the taxable year 2000.

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

entitled to two dependency exemption deductions in 2000, and (2)

whether, and if so to what extent, petitioner is entitled to an

earned income credit in 2000.

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

The stipulations of fact and the attached exhibits are

incorporated herein by this reference.    Petitioner resided in

Brooklyn, New York, on the date the petition was filed in this

case.

     Petitioner’s two sons, Lamani Lakim Christopher Clarke

(Lamani) and LaKim Love Allah, Jr. (LaKim), were born in 1996.

Lamani’s mother is Sandra Clarke.    LaKim’s mother is Sharon

Herbert.    During the year in issue, petitioner turned 38 years

old, he resided in the State of New York, and he earned wages of

$8,701.

     Petitioner filed a Federal income tax return for taxable

year 2000 as a single taxpayer.    He claimed two dependency

exemption deductions for Lamani and LaKim, and he claimed an

earned income credit with Lamani and LaKim as qualifying

children.    Petitioner did not attach to the return a written
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declaration entitling him to one or both of the dependency

exemption deductions.    In the statutory notice of deficiency,

respondent disallowed the dependency exemption deductions and the

earned income credit in full.

     The first issue for decision is whether petitioner is

entitled to dependency exemption deductions for Lamani and LaKim.

A deduction generally is allowed for each dependent of a

taxpayer.   Sec. 151(a), (c)(1).   As a general rule, a child of a

taxpayer is a dependent of the taxpayer only if the taxpayer

provides over half of the child’s support for the taxable year.

Sec. 152(a).   A special rule applies to taxpayer-parents who are

divorced, who are separated, or who live separately for at least

the last 6 months of the calendar year, but who have custody of

the child for more than half of the year and who together provide

over half of the child’s support.    Sec. 152(e)(1).   Under this

rule, the parent with custody of the child for the greater

portion of the year (the “custodial parent”) generally is treated

as having provided over half of the child’s support, regardless

of which parent actually provided the support.     Id.; sec. 1.152-

4(b), Income Tax Regs.    An exception to this special rule exists

which entitles the noncustodial parent to the dependency

exemption deduction.    Sec. 152(e)(2).   For the exception to

apply, the custodial parent must sign a written declaration
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releasing his or her claim to the deduction, and the noncustodial

parent must attach the declaration to his or her tax return.      Id.

     Each taxable year stands alone, and respondent may challenge

in a succeeding year what was condoned or agreed to in a former

year.   Rose v. Commissioner, 55 T.C. 28 (1970).   Thus, a taxpayer

must meet the requirements of sections 151 and 152 in any given

taxable year to be entitled to a dependency exemption deduction,

even if respondent did not challenge a similarly claimed

deduction in a prior year.

     Respondent argues that petitioner is not the custodial

parent of either of the children.    Petitioner argues that he

resided with both of his sons during the year in issue.    Because

petitioner has failed to offer any credible evidence concerning

the issue of where he and his children resided, petitioner bears

the burden of proving respondent’s disallowance of the deductions

to be in error.    Sec. 7491(a)(1); Rule 142(a).

     Petitioner testified that he resided in an apartment during

the year in issue with his two sons, with Ms. Clarke, and with

Ms. Clarke’s mother.   During this time and through the time of

trial, however, petitioner used his father’s address as his own

mailing address.   He testified that he kept this as his mailing

address because “you never know how things might work out.”

Petitioner did not state a specific date when he moved into the

apartment, or state how long he remained there.    Petitioner
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failed to provide any witnesses or documentation corroborating

his assertions.    We find that petitioner has failed to establish

that he was the custodial parent for either of his sons during

the year in issue.   Consequently, because petitioner did not

attach to his return a written declaration entitling him to the

dependency exemption deductions, we sustain respondent’s

determination that petitioner is not entitled to the deductions.

Furthermore, petitioner has failed to establish that he provided

any support for the children during that year.     Even were we to

find that petitioner lived for some part of the last 6 months of

the year with Ms. Clark, he would not be entitled to a dependency

exemption deduction for Lamani.   Secs. 151, 152.

     The second issue for decision is whether, and if so to what

extent, petitioner is entitled to an earned income credit in

2000.   An eligible individual is allowed a credit which is

calculated as a percentage of the individual’s earned income,

subject to certain limitations.   Sec. 32(a)(1).    A single

individual is an eligible individual if his principal place of

abode is in the United States for more than half of the taxable

year, if he is at least 25 years old but under 65 years old, and

if he is not a dependent of another taxpayer.    Sec.

32(c)(1)(A)(ii).   An individual with qualifying children is

entitled to a larger credit than is an individual without

qualifying children.   Sec. 32(a) and (b).   Subject to further
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requirements, the definition of a qualifying child for purposes

of section 32 includes a child of a taxpayer who has the same

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

the taxable year.   Sec. 32(c)(3)(A)(ii).    Petitioner has failed

to show that either of his children had the same principal place

of abode as petitioner for more than half of 2000.     Petitioner

therefore is not entitled to an earned income credit in 2000

based on Lamani and LaKim as qualifying children.     Id.

     Petitioner, however, is nevertheless entitled to a smaller

earned income credit than that claimed.     Petitioner is an

eligible individual, and he earned $8,701 during the year in

issue.   Respondent argues in his trial memorandum that taxpayers

without qualifying children who earn in excess of $5,280 are not

entitled to an earned income credit.   This is incorrect.

According to the tables prescribed by the Secretary pursuant to

section 32(f), the lowest income amount at which the earned

income credit is no longer available in this situation is $10,380

for taxable year 2000.   See also sec. 32(a), (b), (j).     The

amount of the deficiency resulting from the correct amount of the

earned income credit will be calculated pursuant to a Rule 155

computation.

     Reviewed and adopted as the report of the Small Tax Case

Division.
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To reflect the foregoing,

                                    Decision will be entered

                            under Rule 155.
