                  T.C. Summary Opinion 2003-92



                     UNITED STATES TAX COURT



               MIGUEL A. ECHEVARRIA, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 12522-02S.             Filed July 17, 2003.


     Miguel A. Echevarria, pro se.

     Huong T. Duong, for respondent.



     PANUTHOS, Chief 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, and Rule references

are to the Tax Court Rules of Practice and Procedure.
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     Respondent determined a deficiency in petitioner’s Federal

income tax for the taxable year 2000 in the amount of $3,157.

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

to an earned income credit, and (2) whether petitioner is

entitled to a child tax credit.1

Background

     Some of the facts have been stipulated, and they are so

found.   Petitioner resided in Greenfield, California at the time

the petition was filed with the Court.

     During the tax year in issue petitioner lived in an

apartment with Maria Magdalena Velasquez and her son, Manuel

Velasquez, who was 6 years old in 2000.   Petitioner is not the

biological father of Manuel.   Petitioner, Maria, and Manuel have

lived together as a family since approximately 1997.   Petitioner

and Maria were not married during the tax year in issue.

Petitioner provided some support for Maria and Manuel and treated

Manuel as his child.

     On his Federal income tax return for 2000, petitioner listed

his filing status as head of household and claimed a deduction

for a dependency exemption for Manuel, an earned income credit

based on Manuel as a qualifying child, and a child tax credit.

The return reflected Manuel Velasquez as petitioner’s son.


     1
        Respondent conceded that petitioner is entitled to a
deduction for a dependency exemption for Manuel Velasquez and
that petitioner is entitled to head of household filing status.
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Discussion

     There has been no assertion, nor do we conclude, that

petitioner has satisfied the requirements of section 7491(a),

and, consequently, section 7491(a) does not shift the burden of

proof.   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 any

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).   Respondent

asserts that Manuel is not a qualifying child since the

relationship test is not satisfied.        For the tax year in issue,

the relationship test required as follows:

     SEC. 32(c)(3)(B).    Relationship test.--

          (i) In general.--An individual bears a
     relationship to the taxpayer described in this
     subparagraph if such individual is--

              (I) a son or daughter of the taxpayer, or
          a descendant of either,

              (II) a stepson or stepdaughter of the
          taxpayer, or

              (III) an eligible foster child of the
          taxpayer.

                   *     *   *   *     *    *   *

           (iii) Eligible foster child.-–For purposes of
     clause (i)(III), the term “eligible foster child” means
     an individual not described in clause (i)(I) or (II)
     who--
                                - 4 -

               (I) is a brother, sister, stepbrother, or
           stepsister of the taxpayer (or a descendant
           of any such relative) or is placed with the
           taxpayer by an authorized placement agency,

               (II) the taxpayer cares for as the
           taxpayer’s own child, and

               (III) has the same principal place of
           abode as the taxpayer for the taxpayer’s
           entire taxable year.

     It is clear that Manuel was neither a child, stepchild or

descendant of petitioner.   Thus, we look to whether Manuel would

qualify as an eligible foster child.    In this connection,

petitioner cared for Manuel as his own child, and Manuel lived

with petitioner for the entire year.    However, there is nothing

in this record indicating that the provision of section

32(c)(3)(B)(iii)(I) has been satisfied, that Manuel was placed

with the petitioner by an authorized placement agency.     The

record is silent on this matter.   Since the relationship test has

not been satisfied, we conclude that petitioner did not have a

qualifying child for purpose of an earned income credit, and

respondent’s determination is sustained on this issue.

     We next consider the child tax credit.    A taxpayer may be

entitled to a credit against tax with respect to each “qualifying

child”.   Sec. 24(a).   Among other requirements, section 24(c)(1)

(C) provides that “such individual bears a relationship to the

taxpayer described in section 32(c)(3)(B).”    Since we have

concluded for purposes of the earned income credit that Manuel
                               - 5 -

did not satisfy the requirements of said provision, it follows

that petitioner did not have a “qualifying child” for purpose of

the child tax credit.   Respondent is sustained on this issue.

     Reviewed and adopted as the report of the Small Tax Case

Division.

                                       Decision will be entered

                               under Rule 155.
