                         T.C. Memo. 2010-217



                       UNITED STATES TAX COURT



                   MAURICE LOUIS, Petitioner v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 10503-09.                Filed October 7, 2010.



     Maurice Louis, pro se.

     Marissa J. Savit, for respondent.



              MEMORANDUM FINDINGS OF FACT AND OPINION


     VASQUEZ, Judge:    Respondent determined a $2,838 deficiency

in petitioner’s 2007 Federal income tax.    The issues for decision

are whether petitioner is entitled to:    (1) A dependency

exemption deduction for his daughter, M.L.;1 (2) a dependency

     1
         It is the Court’s policy to use initials when referring
                                                    (continued...)
                               - 2 -

exemption deduction for his daughter, Romy P. Louis; (3) head of

household filing status; (4) an earned income credit; (5) a child

tax credit for M.L.; and (6) a credit for qualified retirement

savings contributions.

                         FINDINGS OF FACT

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

The stipulations of facts and the attached exhibits are

incorporated herein by this reference.   Petitioner resided in New

York when the petition was filed.

     Petitioner has two children, M.L., born on June 17, 1996,

and Romy P. Louis (Ms. Louis), born on October 17, 1976.

Petitioner and M.L.’s mother, Marie Rose Janvier (Ms. Janvier),

divorced on March 9, 2006.2   The judgment of divorce states that

the parents are to have joint custody of M.L. but that M.L. is to

reside with Ms. Janvier and her home is to be the custodial

residence.   The judgment of divorce does not contain a provision

regarding which parent is entitled to the dependency exemption

deduction for M.L., nor was there an agreement in place between

petitioner and Ms. Janvier.


     1
      (...continued)
to minors. See Rule 27(a)(3), Tax Court Rules of Practice and
Procedure. All section references are to the Internal Revenue
Code of 1986, as in effect for the year in issue, and all Rule
references are to the Tax Court Rules of Practice and Procedure.
     2
        It is unclear from the record whether Ms. Janvier is also
the mother of Romy P. Louis. However, it is inconsequential to
the result.
                                - 3 -

     M.L. spent time living with both parents in 2007.    During

the school year M.L. lived with Ms. Janvier during the week and

with petitioner on the weekends.    On most school days Ms. Janvier

transported M.L. to and from school; but if she worked late or

missed her train, petitioner often assisted her.    During the

summer Ms. Janvier worked 3 or 4 days a week and M.L. resided

with petitioner.   M.L. also resided with petitioner on holidays

when Ms. Janvier worked.    Petitioner maintained health insurance

for M.L. and paid any medical expenses incurred on her behalf.

     Ms. Louis turned 31 in 2007 and filed her own 2007 Federal

income tax return.   She reported income of $13,233 and claimed an

exemption for herself.

     Petitioner timely filed his 2007 Federal income tax return

on which he reported earned income and adjusted gross income of

$32,756.   He claimed a dependency exemption deduction for each of

his two daughters, filed as a head of household, and claimed

numerous credits resulting from his belief that his daughters

were his dependents.3    Ms. Janvier also claimed a dependency

exemption deduction for M.L. for 2007.

     Respondent issued a notice of deficiency to petitioner

disallowing both dependency exemption deductions, the head of

household filing status, the child tax credit, the earned income

     3
        Petitioner claimed the child tax credit for M.L., the
earned income credit, and the credit for qualified retirement
savings contributions.
                                 - 4 -

credit, and the credit for qualified retirement savings

contributions.

                                OPINION

      Petitioner has neither claimed nor shown that he satisfied

the requirements of section 7491(a) to shift the burden of proof

to respondent.    Accordingly, petitioner bears the burden of

proof.    See Rule 142(a).

I.   Dependency Exemption Deduction

      Section 151(a) and (c) allows a taxpayer to deduct an annual

exemption amount for each “dependent” of the taxpayer.    An

individual is a dependent of a taxpayer if the individual is

either a “qualifying child” or a “qualifying relative.”    Sec.

152(a).    A qualifying child means an individual who:   (1) Bears a

qualifying relationship to the taxpayer (e.g., a child of the

taxpayer); (2) has the same principal place of abode as the

taxpayer for more than one-half of the taxable year; (3) is under

the age of 19, or 24 if a student, as of the close of the year;4

and (4) has not provided over one-half of his/her own support for

the year.    Sec. 152(c)(1).   If both parents claim the same child

as a qualifying child on separate Federal income tax returns, the

child is treated as the qualifying child of the parent with whom


      4
        If an individual meets the definition of “permanently and
totally disabled”, the age requirement is deemed satisfied.
Secs. 22(e)(3), 152(c)(3)(B). Petitioner does not suggest, nor
is there evidence, that Ms. Louis is permanently and totally
disabled.
                              - 5 -

the child resided for the longer period during the year.    Sec.

152(c)(4)(B)(i).

     A qualifying relative is an individual who:   (1) Bears a

qualifying relationship to the taxpayer (e.g., a child of the

taxpayer); (2) has gross income for the calendar year less than

that tax year’s exemption amount;5 (3) has more than one-half of

his/her support for the tax year provided by the taxpayer; and

(4) is not a qualifying child of any taxpayer for the tax year.

Sec. 152(d)(1).

     In addition, section 152(e)(1) and (2) provides a special

rule for divorced parents whereby the noncustodial parent,

defined as the parent not having custody6 of the child for the

greater part of the year, may treat the child as his/her

qualifying child or qualifying relative notwithstanding the

“place of abode” requirement of section 152(c)(1)(B), the

“support” requirement of section 152(d)(1)(C), or the tie-breaker

rule of section 152(c)(4) if certain requirements are met.7   For



     5
        The exemption amount was $3,400 in 2007. Sec. 151(d)(1),
4(A); Rev. Proc. 2006-53, sec. 3.18(1), 2006-2 C.B. 996, 1001.
     6
        Custody is determined by the most recent divorce decree.
In the event of joint custody, “custody” is deemed to be with the
parent who has the physical custody of the child for the greater
portion of the year. Sec. 1.152-4(b) and (c), Income Tax Regs.
     7
        Sec. 152(e)(1) applies if a child receives over one-half
of the child’s support during the year from the child’s divorced
parents, and such child is in the custody of one or both of the
child’s parents for more than one-half of the year.
                               - 6 -

the noncustodial parent to treat the child as his/her qualifying

child or qualifying relative, the custodial parent, defined as

the parent having custody for the greater part of the year, must

execute a written declaration releasing his/her claim to the

dependency deduction, such as Form 8332, Release of Claim to

Exemption for Child of Divorced or Separated Parents, and the

noncustodial parent must attach the written declaration to

his/her tax return.   Sec. 152(e)(2); sec. 1.152-4T(a), Q&A-1, -3,

Temporary Income Tax Regs., 49 Fed. Reg. 34459 (Aug. 31, 1984).

     A.   Whether M.L. Is a Dependent of Petitioner

     Petitioner asserts that M.L. is his qualifying child because

she resided with him for more than one-half of 2007.8   Respondent

contends that M.L. is not petitioner’s qualifying child because

M.L. resided with Ms. Janvier for the longer period in 2007.

Respondent also maintains that the exception in section 152(e)

does not apply because Ms. Janvier did not execute, nor did

petitioner attach to his tax return, a written declaration

releasing her claim to the deduction.

     Petitioner testified that M.L. lived with him for 194 days

during 2007, made up of every weekend during the year (104 days),

school holidays (6 days), school recess (24 days), and summer

vacation (60 days).   Petitioner provided no additional evidence



     8
        The remaining requirements of sec. 152(c)(1) are not in
dispute.
                                - 7 -

to substantiate these numbers.9   Moreover, respondent offered two

pieces of credible evidence that contradict these numbers:      (1)

The testimony of Ms. Janvier, and (2) the judgment of divorce.

     Ms. Janvier testified that M.L. resided with her for more

than one-half of 2007, and she refuted petitioner’s testimony

that M.L. resided with him for 60 days during the summer.

Further, the judgment of divorce states that M.L. is to reside

with Ms. Janvier and that Ms. Janvier’s home is the custodial

residence.

     Petitioner has not met his burden of proving that M.L. lived

with him for a longer period than with Ms. Janvier and

accordingly has not met his burden of proving that M.L. is his

qualifying child.    Additionally, petitioner has not met his

burden of proving that M.L. is his qualifying relative because he

has not shown that M.L. is not the qualifying child of another

taxpayer nor attempted to substantiate the sources of M.L.’s

support in 2007.    Finally, petitioner does not suggest that he

obtained a Form 8332 or similar written declaration from Ms.

Janvier, and he did not attach such a written declaration to his

Federal income tax return.




     9
        As respondent states in his brief, it appears that
petitioner double-counted certain weekends. Petitioner counted
every weekend during the year and nearly the entire summer
vacation, including weekends.
                                - 8 -

      Consequently, respondent’s disallowance of the dependency

exemption deduction for M.L. is sustained.

      B.   Whether Ms. Louis Is a Dependent of Petitioner

      Petitioner also claimed a dependency exemption deduction for

Ms. Louis.    Petitioner felt entitled to the deduction because of

his beliefs that Ms. Louis resided with him and that he provided

more than one-half of Ms. Louis’ support.    Respondent counters

that Ms. Louis does not meet the age requirement of a qualifying

child and reports too much income to be a qualifying relative.

Respondent is correct as to both.

      Ms. Louis turned 31 years old in 2007 and reported income of

$13,233.    Therefore, she is not petitioner’s qualifying child or

qualifying relative.   Although petitioner does not argue for the

application of section 152(e), the special rule does not apply to

an individual who exceeds the age and gross income requirements.

Thus, Ms. Louis is not petitioner’s dependent, and respondent’s

disallowance of the dependency exemption deduction for Ms. Louis

is sustained.

II.   Head of Household Filing Status

      An individual qualifies as a head of household if the

individual is not married at the close of the taxable year and

maintains as his home a household that constitutes for more than

one-half of the taxable year the principal place of abode of an
                                   - 9 -

individual who qualifies as the taxpayer’s dependent within the

meaning of section 152.       Sec. 2(b)(1).

       Neither M.L. nor Ms. Louis qualifies as a dependent of

petitioner within the meaning of section 152, and petitioner has

not claimed that any other dependents resided with him in 2007.

Accordingly, he is not entitled to head of household filing

status.    Respondent’s determination is sustained.

III.    Child Tax Credit

       A taxpayer may claim a child tax credit for “each qualifying

child of the taxpayer”.       Sec. 24(a).   A “qualifying child” for

purposes of section 24 is a qualifying child as defined in

section 152(c) who has not attained the age of 17.        Sec.

24(c)(1).

       Because we have determined that M.L. is not petitioner’s

qualifying child, it follows that petitioner is not entitled to a

child tax credit for M.L.       Respondent’s determination is

sustained.

IV.    Earned Income Credit

       Section 32(a) provides an earned income credit for an

eligible individual for so much of the taxpayer’s earned income

for the taxable year as does not exceed the earned income

amount.    To be entitled to an earned income credit for the 2007

tax year, a taxpayer’s earned income and adjusted gross income

for the taxable year must each be less than:        (i) $37,783 with
                                   - 10 -

two or more qualifying children; (ii) $33,241 with one qualifying

child; or (iii) $12,590 with no qualifying children.        Sec.

32(b)(2), (j)(1); Rev. Proc. 2006-53, sec. 3.07, 2006-2 C.B. at

1000.        The term “qualifying child”, for purposes of section 32,

means a qualifying child as defined in section 152(c) without

regard to section 152(c)(1)(D) and (e).        Sec. 32(c)(3)(A).

     As discussed supra, M.L. and Ms. Louis are not qualifying

children of petitioner.10       Thus, for purposes of section 32,

petitioner has no qualifying children.        Petitioner reported

earned income and adjusted gross income of $32,756 in 2007,

therefore making him ineligible for an earned income credit.

Consequently, respondent’s determination is sustained.

V.   Credit for Qualified Retirement Savings Contributions

        An individual is allowed a credit for a percentage of

qualified retirement savings contributions if the individual

meets an adjusted gross income requirement.        Sec. 25B(a) and (b).

An individual filing as a head of household is allowed a credit

so long as the individual’s adjusted gross income does not exceed

$39,000, while an individual filing as single is allowed a credit

so long as the individual’s adjusted gross income does not exceed

$26,000.        Sec. 25B(b); Rev. Proc. 2006-53, sec. 3.06, 2006-2 C.B.

at 999-1000.        Respondent asserts that petitioner wrongfully filed



        10
        This remains true even without regard to sec.
152(c)(1)(D) and (e).
                              - 11 -

as a head of household and therefore cannot claim a credit

because of his adjusted gross income in excess of $26,000.

     As determined supra, petitioner was not entitled to head of

household filing status.   Since petitioner’s adjusted gross

income exceeded $26,000, he was not entitled to claim a credit

for qualified retirement savings contributions.    Thus,

respondent’s determination is sustained.

     To reflect the foregoing,


                                      Decision will be entered

                                 for respondent.
