                  T.C. Summary Opinion 2002-59



                     UNITED STATES TAX COURT



                  RAFAEL BARAJAS, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 6071-01S.              Filed May 28, 2002.



     Rafael Barajas, pro se.

     John W. Strate, for respondent.



     WOLFE, 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 $4,526 in petitioner’s

1999 Federal income tax.   After concessions by respondent,1 the

sole issue for decision is whether petitioner is entitled to an

earned income credit claimed on his tax return.

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

the time the petition was filed, petitioner resided in San Jose,

California.

                            Background

     Throughout 1999, petitioner lived in an apartment with his

mother and his three younger siblings.   His father and his older

siblings did not live with them.   Petitioner was employed as a

machinist, and he was the financial provider for the family.    He

paid the apartment rent and the household bills.   Petitioner’s

mother suffered from cancer.   She relied on crutches for walking

and on petitioner for transportation outside of the apartment.

Petitioner frequently drove her to clinics for cancer treatment,

to the grocery store, and to the homes of relatives.

     Petitioner’s younger siblings attended school full time.

Because their mother does not speak English, they relied on


     1
      Respondent concedes that petitioner is entitled to a
dependency exemption deduction under sec. 151(c) for each of his
three younger siblings as claimed on his 1999 Federal income tax
return. Respondent also concedes that petitioner is entitled to
head of household filing status and a standard deduction in the
amount appropriate to that filing status.
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petitioner for assistance with their homework when needed.

Petitioner and his mother shared responsibility in the discipline

of his younger siblings.   His mother established the rules in the

household, such as setting curfews, and relied on petitioner to

enforce the rules.

     Petitioner reported income of $14,101 on his 1999 Federal

income tax return.   His income consisted entirely of wages.

Petitioner claimed an earned income credit computed by treating

two of his siblings as qualifying children.   In the notice of

deficiency, respondent disallowed the earned income credit.

                            Discussion

     Section 32(a)(1) allows an eligible individual an earned

income credit against the individual’s income tax liability.     An

eligible individual is any individual who either:   (1) Has a

qualifying child as defined by section 32(c)(3), or (2) has no

qualifying child and meets the requirements of section

32(c)(1)(A)(ii).   Sec. 32(c)(1)(A).

     For a taxpayer to be entitled to an earned income credit for

a qualifying child, the qualifying child must satisfy a residency

test, an age test, and a relationship test.   Sec. 32(c)(3)(A).

There is no dispute here   that petitioner’s siblings were minors

and students living in the same residence with him and that the

residency and age tests are satisfied.   The relationship test can

be satisfied if the individual is an “eligible foster child” of
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the taxpayer.   Sec. 32(c)(3)(B)(i)(III).   An eligible foster

child is defined in part as an individual who “the taxpayer cares

for as the taxpayer’s own child”.    Sec. 32(c)(3)(B)(iii)(II).

     Neither the Code nor the regulations define how a taxpayer

cares for an individual as his or her own child.    This Court has

indicated that merely contributing financially to the support of

an individual does not rise to the level of caring for the

individual as one’s own child.    See Mares v. Commissioner, T.C.

Memo. 2001-216; Smith v. Commissioner, T.C. Memo. 1997-544.

     Respondent contends that petitioner did not care for any of

his siblings as if that sibling were his own child.   We disagree.

The record shows that petitioner cared for his younger siblings

in a parental capacity.   In addition to being the primary source

of financial support for the household as well as for each of his

younger siblings,2 petitioner assumed the role of a father figure

with respect to his younger siblings.    Petitioner and his younger

sister testified convincingly that petitioner and his mother

jointly shared parental duties during the year in issue, and that

petitioner conducted himself and cared for his siblings as though

he were one of the parents in the household.   He helped his

siblings with homework at times, since his mother could not speak

English and his father had left the household.   He even had to

explain personal hygiene to his younger sister because neither

     2
      See supra note 1.
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his mother nor an older sister could bring herself to do this

task.   His mother was unable to guide the younger children in the

society in which they grew up, since she was disabled, spoke no

English, and knew only traditional Mexican society.   Although he

was available only to a limited extent because of the demands of

his work, petitioner filled the void for his siblings.   We

conclude that under difficult circumstances, petitioner satisfied

the requirements of sec. 32(c)(3)(B)(iii).

     Accordingly, we hold that petitioner is entitled to an

earned income credit in the amount claimed on his 1999 Federal

income tax return.

     Reviewed and adopted as the report of the Small Tax Case

Division.

                                         Decision will be entered

                                    for petitioner.
