                  T.C. Summary Opinion 2002-92



                     UNITED STATES TAX COURT



                  DONNELL FLOYD, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 2619-01S.               Filed July 17, 2002.



     Donnell Floyd, pro se.

     David R. Jojola, for respondent.



     COUVILLION, Special Trial Judge:    This case was heard

pursuant to section 7463 of the Internal Revenue Code in effect

at the time the petition was filed.1    The decision to be entered

is not reviewable by any other court, and this opinion should not

be cited as authority.

     1
          Unless otherwise indicated, subsequent section
references are to the Internal Revenue Code in effect for the
year at issue.
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     Respondent determined a deficiency of $2,927 in petitioner’s

Federal income tax for 1998.

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

entitled to a dependency exemption deduction under section 151

for one of his twin children; (2) whether petitioner is entitled

to head-of-household filing status under section 2(b); and (3)

whether petitioner is entitled to the earned income credit under

section 32(a).

     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 Ontario, California.

     Petitioner and Lavonda C. Floyd (Ms. Floyd) were married on

December 10, 1989.   Two children, twins, were born during the

marriage: Dawnielle C. Floyd (Dawnielle) and Donnell R. Floyd, II

(Donnell II), on January 12, 1992.      Petitioner and Ms. Floyd

separated on August 1, 1995.    A petition for dissolution of

marriage was filed on November 20, 1997, in the Superior Court of

California, County of San Bernardino.

     A judgment of dissolution was entered on February 8, 1999.

In that judgment, petitioner and Ms. Floyd were awarded joint

legal custody of the twins.    Petitioner was awarded physical

custody on the first and third Sunday through Wednesday and the

second and fourth Monday through Wednesday of each month.
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Petitioner was ordered to pay child support of $148 per month.

     The year at issue involves the period after petitioner

separated from his wife but before any decree of divorce or

separate maintenance or any written document establishing

custodial rights and responsibilities existed.    During the year

in question, the care, custody, and support of the twins were

divided informally.   Petitioner generally kept the children from

Sunday through Wednesday of each week; Ms. Floyd kept them

Wednesday through Sunday.    On occasion, petitioner would have

them Monday through Wednesday or later than Wednesday.    At their

parents’ preference, the children stayed together wherever they

went, except for occasional illnesses or other reasons.

     During the year in question, petitioner lived in a rented

apartment with his mother.    He supported himself as a hair

stylist and by performing other work in a group home.    Petitioner

occasionally purchased items of clothing for the twins when they

were in his care.   In 1998, petitioner gave Ms. Floyd $1,000 for

the support of the children on an ad hoc basis.    Petitioner also

alleged he provided medical coverage for the children during

1998; however, that was not substantiated with documentary

evidence.

     During 1998, Ms. Floyd lived with her stepmother, whom she

paid $300 for rent and $100 for utilities monthly.   She paid for

her own telephone service and household items.    She worked as a
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hair stylist and group counselor.   Ms. Floyd also provided

clothing and other items for the children and paid medical

expenses for them.

     Petitioner alleges he and Ms. Floyd reached an oral

agreement that each of them would claim one dependency exemption

on their income tax returns for 1998.    Ms. Floyd would claim the

exemption for their daughter, Dawnielle, and petitioner would

claim the exemption for their son, Donnell II.    Ms. Floyd denied

such an agreement, and no written document or agreement to that

effect was offered into evidence.

     Petitioner’s adjusted gross income was $10,608 for 1998.   On

his 1998 return, petitioner claimed head-of-household filing

status, a dependency exemption deduction for his son, Donnell II,

and an earned income credit of $2,271, with Donnell II reported

as the qualifying child.   Petitioner did not claim a dependency

exemption for his daughter, Dawnielle.   On her 1998 return, Ms.

Floyd claimed dependency exemption deductions for both children.

     In the notice of deficiency, respondent determined

petitioner’s filing status as married filing separately.   In

addition, respondent disallowed petitioner’s dependency exemption

for his son and disallowed the claimed earned income credit.

     The first issue for decision is whether petitioner is

entitled to the dependency exemption deduction for his son.

Section 151(c) allows taxpayers to deduct an annual exemption
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amount for each dependent, as defined in section 152.   Under

section 152(a), the term “dependent” means certain individuals,

including the son or daughter of the taxpayer, over half of whose

support was received from the taxpayer during the taxable year in

which such individual is claimed as a dependent.

     Subject to exceptions not applicable here, section 152(e)

provides a support test for children of parents who are divorced,

separated, or living apart.   It provides:


     (1) Custodial parent gets exemption.-–Except as otherwise
     provided in this subsection, if–-

          (A) a child (as defined in section 151(c)(3))receives
          over half of his support during the calendar year from
          his parents-–

                 (i) who are divorced or legally separated under
                 a decree of divorce or separate maintenance,

                 (ii) who are separated under a written
                 separation agreement, or

                 (iii) who live apart at all times during the
                 last 6 months of the calendar year, and

          (B) such child is in the custody of one or both of his
          parents for more than one-half of the calendar year,

     such child shall be treated for purposes of * * * [section
     152(a)] as receiving over half of his support during the
     calendar year from the parent having custody for a greater
     portion of the calendar year * * * [i.e., custodial parent].


Moreover, section 1.152-4(b), Income Tax Regs., generally

provides that, in the absence of a custody or divorce decree or

written separation agreement, “‘custody’ will be deemed to be
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with the parent who, as between both parents, has the physical

custody of the child for the greater portion of the calendar

year.”

       Since petitioner and Ms. Floyd lived apart during all of

1998, the issue under section 152(e)(1)(B) is whether Donnell II

was in the custody of petitioner for more than one-half of the

calendar year.    On this record, the evidence fails to establish

this fact.    Petitioner did not have physical custody of his son

for a greater portion of the year than did Ms. Floyd, the child’s

mother.

       While petitioner and Ms. Floyd had worked out an equitable

arrangement whereby the children spent several days each week

with petitioner, that time did not exceed one-half of the

calendar year in total.    Even if, as petitioner contends, both

children spent every Sunday through Wednesday with him, the

children in fact spent part of Sunday and part of Wednesday with

their mother, as well as all of Thursday through Saturday with

her.    On the basis of the testimony and the record, the Court

holds that the twins spent more than half of their time in the

custody and care of their mother during 1998.

       Because Ms. Floyd was the custodial parent of the twins in

1998, Donnell II is treated as having received over half of his

support from Ms. Floyd during that year.    Sec. 152(e)(1).   This

result provides consistent treatment for the children, who were
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generally together at all times.   Because Donnell II did not

receive over half of his support from petitioner, Donnell II

cannot be claimed as petitioner’s dependent.    Respondent is

sustained on this issue.

     The second issue is whether petitioner is entitled to head-

of-household filing status.   As relevant here, section 2(b)

defines a head of household as an individual taxpayer who (1) is

not married at the close of the taxable year, and (2) maintains

as his home a household which constitutes “for more than one-half

of such taxable year” the principal place of abode of a son or

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

     The rules provided by section 7703(b) are applicable for

determining an individual’s marital status.    Sec. 2(c).   Certain

married individuals living apart can be considered unmarried if

three requirements are met.   See sec. 7703(b).   On this record,

for the year in question, petitioner is considered married.

There was no operative decree of divorce or separate maintenance

between petitioner and Ms. Floyd in 1998.   See sec. 2(b)(2)(B).

In addition, petitioner did not maintain as his home a household

that constituted for more than one-half of the taxable year the

principal place of abode of a child with respect to whom

petitioner is entitled to a deduction under section 151.    Sec.

7703(b)(1).   Petitioner, therefore, does not qualify for head-of-

household filing status under section 2(b) and (c).    His proper
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filing status is married filing separately.   See sec. 1(d).

Respondent is sustained on this issue.

     The final issue for decision is whether petitioner is

entitled to an earned income credit.   Section 32(a) provides for

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

However, a married individual cannot claim the earned income

credit if his filing status is married filing separately.

Section 32(d) provides:   “In the case of an individual who is

married (within the meaning of section 7703), this section shall

apply only if a joint return is filed for the taxable year under

section 6013.”   Since the Court has concluded that petitioner was

considered married in 1998, and no joint return was filed for

that year, petitioner is not entitled to the earned income

credit.   Respondent is sustained on this issue.2




     2
          The Internal Revenue Service Restructuring & Reform Act
of 1998, Pub. L. 105-206, sec. 3001, 112 Stat. 726, added
sec. 7491, which, under certain circumstances, places the burden
of proof on the Secretary with respect to any factual issue
relevant to ascertaining a taxpayer’s liability for taxes in
court proceedings arising in connection with examinations
commencing after July 22, 1998. The examination of petitioner’s
return commenced after July 22, 1998. Nevertheless, the burden
of proof with respect to the items of deficiency did not shift to
respondent. Petitioner has neither alleged that sec. 7491 is
applicable nor established that he complied with the requirements
of sec. 7491(a)(2)(A) and (B). See Higbee v. Commissioner, 116
T.C. 438 (2001). Moreover, even if respondent carries the burden
of proof, the Court is satisfied that such burden has been met.
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    Reviewed and adopted as the report of the Small Tax Case

Division.



                                          Decision will be entered

                                     for respondent.
