                     T.C. Summary Opinion 2008-112



                        UNITED STATES TAX COURT



                 ALFRED CASTRO ESPINOZA, Petitioner v.
             COMMISSIONER OF INTERNAL REVENUE, Respondent



        Docket No. 12391-07S.              Filed August 28, 2008.



        Alfred Castro Espinoza, pro se.

        Nina S. Kang, for respondent.



     DEAN, 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 Revenue Code in effect for the year in issue,
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and all Rule references are to the Tax Court Rules of Practice

and Procedure.

     Respondent denied petitioner’s dependency exemption

deductions and head of household filing status, determining a

$2,475 deficiency in petitioner’s 2005 Federal income tax.      The

issues for decision are whether petitioner is entitled to claim:

(1) Dependency exemption deductions for AR and JR;1 and (2) head

of household filing status.

                              Background

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

The stipulation of facts and the exhibits received into evidence

are incorporated herein by reference.      When the petition was

filed, petitioner resided in California.

     Petitioner filed a Form 1040, U.S. Individual Income Tax

Return, for 2005.    He claimed dependency exemption deductions for

JR and AR and filed as a head of household.      JR and AR are the

children of petitioner’s then girlfriend;2 he is not related to

the children by blood.    In 2005 petitioner was not related to JR

and AR by marriage, he had not legally adopted the children, and

they were not his eligible foster children.



     1
      The Court refers to minor children by their initials. See
Rule 27(a)(3). The evidence in the record indicates that the
children were 9 and 7 years old in 2005.
     2
        Petitioner and his former girlfriend are now husband and
wife.
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                             Discussion

I.    Burden of Proof

       The Commissioner’s determinations in a notice of deficiency

are presumed correct, and the taxpayer bears the burden to prove

that the determinations are in error.     See Rule 142(a); Welch v.

Helvering, 290 U.S. 111, 115 (1933).      But the burden of proof on

factual issues that affect the taxpayer’s tax liability may be

shifted to the Commissioner where the “taxpayer introduces

credible evidence with respect to * * * such issue.”     See sec.

7491(a)(1).    Petitioner has not alleged that section 7491(a)

applies; however, the Court need not decide whether the burden

shifted to respondent since the Court’s analysis is based on the

record before it and not on who bears the burden of proof.

II.    Dependency Exemption Deductions

       Section 151(c) allows a taxpayer to claim as a deduction the

exemption amount for each individual who is a “dependent” of the

taxpayer as defined in section 152.      Section 152(a) provides that

the term “dependent” includes a “qualifying child” or “qualifying

relative.”    A qualifying child is a child who bears a certain

relationship to the taxpayer.    Sec. 152(c)(1)(A).   The

relationship exists if the claimed dependent is the taxpayer’s:

(1) Child or descendant of such child; or (2) brother, sister,

stepbrother, stepsister, or a descendant of any such relative.

Sec. 152(c)(2).    The term “child” means an individual who is the
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taxpayer’s son, daughter, stepson, or stepdaughter, an adopted

individual, or an “eligible foster child”.         Sec. 152(f)(1).

       Petitioner is not related to JR or AR by blood.       In 2005 he

was not related to JR or AR by marriage, he was not their

adoptive parent, and they were not his eligible foster children.

Petitioner has failed to establish that either JR or AR is his

qualifying child.

       In pertinent part, section 152(d)(1)(D) defines a qualifying

relative as an individual who is not a qualifying child of any

other taxpayer for the taxable year.

       JR and AR are qualifying children of their mother.3       See

sec. 152(c)(1), (2)(A), (3).       Thus, JR and AR are not

petitioner’s qualifying relatives.         See sec. 152(d)(1)(D).

       On the basis of the foregoing, petitioner is not entitled to

a dependency exemption deduction for JR or AR, and respondent’s

determination is sustained.

III.       Head of Household Filing Status

       As is relevant here, section 2(b)(1) defines “head of a

household” as an unmarried individual who maintains as his home a

household that constitutes for more than one-half of the taxable

year the principal place of abode of a qualifying child or

qualifying relative of the taxpayer.         JR and AR are not


       3
      In 2005 the minor children resided with their mother in
Whittier, Cal. Petitioner resided in Bakersfield, Cal., during
the week and commuted to Whittier, Cal., on his days off.
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petitioner’s qualifying children or qualifying relatives.       Thus,

petitioner is not entitled to head of household filing status for

2005, and respondent’s determination is sustained.

     To reflect the foregoing,


                                         Decision will be entered for

                                 respondent.
