                  T.C. Summary Opinion 2001-117



                     UNITED STATES TAX COURT



                 ELISEO ARGOMANIZ, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 18754-99S.              Filed July 31, 2001.



     Eliseo Argomaniz, pro se.

     Ric D. Hulshoff, for respondent.



     PAJAK, 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

effect for the year in issue.
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     Respondent determined a deficiency of $4,006 in petitioner's

1998 Federal income tax.    This Court must decide: (1) Whether

petitioner is entitled to dependency exemption deductions for his

niece and nephew; (2) whether petitioner is entitled to file as

head of household instead of single; and (3) whether petitioner

is entitled to the child care credit, the child tax credit, and

the earned income credit.

     Petitioner resided in Santa Ana, California, at the time he

filed his petition.

     During 1998, petitioner resided for part of the year at 2321

South Maple Street (South Maple) and for the other part of the

year at 2018 Orange Avenue.    Petitioner's two sisters and their

12 children lived with petitioner and his brother at the South

Maple address from May 1, 1996, to October 30, 1998.    Petitioner

had been renting the property with his brother when both his

sisters had problems with their husbands, which caused the

sisters and children to reside with petitioner.

     There are two children who are relevant to the issues in

this case, Melissa, petitioner's niece, and Omar, petitioner's

nephew.   Melissa was born in 1995 and Omar was born in 1993.     One

of the sisters living with petitioner was Melissa's mother.     The

other sister living with petitioner was Omar's mother.

     Petitioner and his brother worked in construction during

1998.   His sisters were not working at that time, but one sister
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was receiving some type of financial assistance from the

Government.   Petitioner did not know whether the fathers of the

children were paying any child support.   Petitioner testified

that his brother "was actually responsible for all of us" and

that "he was the one that would make more money than everyone".

     The rent for the three bedroom house was $1,300 per month.

Petitioner paid $400 of the $1,300 payments.   Each week

petitioner and his brother would spend about $200 on food.   Of

that amount petitioner would pay at least $50 a week.   Petitioner

would buy the children clothes when he would get spare money.

Petitioner did not know how much it cost in total to support

Melissa and Omar in 1998.

     On his 1998 tax return, petitioner claimed Melissa and Omar

as dependents and listed them as foster children.   Petitioner

also filed as head of household and claimed his niece and nephew

for the child care credit, the child tax credit, and the earned

income credit.

     Respondent determined that petitioner was not entitled to

claim his niece and nephew as dependents, that his filing status

was single rather than head-of-household, and that he was not

entitled to the child care, child tax, and earned income credits.

     Section 151 allows a taxpayer to deduct an annual exemption

amount for each dependent, as defined in section 152.   Section

152(a) provides, in pertinent part, that a dependent includes an
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individual over half of whose support in the taxable year was

received from the taxpayer and whose principal place of abode for

the taxable year is the home of the taxpayer and is a member of

the taxpayer's household.    Sec. 152(a)(9).   In determining

whether or not an individual received over half of his or her

support from the taxpayer, there shall be taken into account the

amount of support received from the taxpayer as compared to the

entire amount of support which the individual received from all

sources, including support which the individual himself or

herself supplied.    Sec. 1.152-1(a)(2)(i), Income Tax Regs.

Support includes food, shelter, clothing, medical and dental

care, education, and the like.    Sec. 1.152-1(a)(2)(i), Income Tax

Regs.

     To establish that petitioner provided more than one-half of

the claimed dependents' support, he must first show by competent

evidence the total amount of support furnished by all sources for

the year in issue.    Blanco v. Commissioner, 56 T.C. 512, 514

(1971).   Petitioner has not offered competent evidence of the

total amount of support provided for each of the claimed

dependents in 1998.    Aside from his testimony, petitioner

presented no evidence to corroborate or substantiate any of the

claimed support expenses, such as rent, or that these expenses

were indeed paid by petitioner.    In fact, based on petitioner's

testimony, it appears that most of the family's expenses were
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paid by petitioner's brother, with help from the Government.

Without proper substantiation, the Court cannot conclude from the

record that more than one-half of the support of each claimed

dependent was provided by petitioner.   Thus, petitioner has

failed to establish that he provided over half of the total

support for Melissa and Omar.   Accordingly, we hold that

petitioner is not entitled to claim his niece and nephew as

dependents under section 151.

     Respondent determined that petitioner's filing status should

be changed from head of household to single.    Section 2(b), in

relevant part, defines head of household as an unmarried taxpayer

who maintains as his home a household which constitutes for more

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

of a person who is a dependent of the taxpayer, if the taxpayer

is entitled to a deduction for the taxable year for such person

under section 151.   Sec. 2(b)(1)(A)(ii).   Because we held that

petitioner is not entitled to a deduction for either his niece or

his nephew in 1998 under section 151, we also hold that

petitioner may not claim head of household filing status.    We

sustain respondent's determination as to this issue.

     Petitioner claimed a credit for child and dependent care

expenses of $566 for 1998, which respondent disallowed.     Section

21 provides, in part, that an individual who maintains a

household which includes as a member a qualifying individual
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shall be allowed a credit based on the expenses for household

services and dependent care services incurred to enable the

taxpayer to be gainfully employed.     Sec. 21(a) and (b).   Section

21(b)(1) defines, in pertinent part, a qualifying individual as a

dependent of the taxpayer who is under the age of 13 and with

respect to whom the taxpayer is entitled to a dependency

exemption deduction.

     We have held that petitioner is not entitled to dependency

exemption deductions for his niece and nephew.     Moreover,

petitioner did not "maintain a household" because he did not show

that he furnished over half the cost of maintaining the home.

Sec. 21(e)(1).   We sustain respondent's determination with

respect to this credit.

     Petitioner claimed a child tax credit of $473 for 1998,

which respondent disallowed.   Section 24(a) allows a credit for

each qualifying child of the taxpayer.     A "qualifying child"

means any individual if the taxpayer is allowed a deduction under

section 151 with respect to the individual for the taxable year,

the individual has not attained the age of 17 by the close of the

year, and the individual bears a relationship to the taxpayer

described in section 32(c)(3)(B).    Sec. 24(c).   In this case,

because petitioner is not allowed dependency exemptions under

section 151 for his niece and nephew, they are not qualifying

children.   Petitioner does not qualify for the child tax credit
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in 1998.    We sustain respondent's determination as to this issue.

     Petitioner claimed an earned income credit of $1,857 for

1998, which respondent disallowed.      Section 32(a) provides for an

earned income credit in the case of an eligible individual.

Section 32(c)(1)(A)(i), in pertinent part, defines an "eligible

individual" as an individual who has a qualifying child for the

taxable year.   A qualifying child is one who satisfies a

relationship test, a residency test, and an age test.       Sec.

32(c)(3).   To satisfy the relationship test in this case, the

qualifying child must be an eligible foster child of petitioner.

Sec. 32(c)(3)(B)(i)(III).   An eligible foster child is an

individual for whom the taxpayer cares for as the taxpayer's own

child and who has the same principal place of abode as the

taxpayer for the taxpayer's entire taxable year.     Sec.

32(c)(3)(B)(iii).

     The children resided with petitioner only until October 30,

1998.   They did not reside with him for the entire taxable year.

Moreover, no evidence was presented that petitioner cared for his

niece and nephew as his own children.     We find that the niece and
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nephew are not eligible foster children with regard to

petitioner.   Accordingly, we sustain respondent's determination

as to the earned income credit.

     Reviewed and adopted as the report of the Small Tax Case

Division.



                                            Decision will be entered

                                       for respondent.
