                       T.C. Memo. 1999-317



                     UNITED STATES TAX COURT



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



     Docket No. 17186-98.          Filed September 24, 1999.



     Miguel A. Bauta, pro se.

     Nancy L. Spitz, for respondent.


                       MEMORANDUM OPINION

     GOLDBERG, Special Trial Judge:    Respondent determined

deficiencies in petitioner's Federal income taxes in the amounts

of $78 and $90 for the taxable years 1996 and 1997, respectively.

Unless otherwise indicated, section references are to the

Internal Revenue Code in effect for the years in issue.
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     The sole issue for determination is whether petitioner is

entitled to the earned income credit for the tax years 1996 and

1997.

     This case was submitted fully stipulated.    The stipulation

of facts and the attached exhibits are incorporated herein by

this reference.   Petitioner resided in Immokalee, Florida, when

the petition in this case was filed.

     During the years at issue, petitioner was incarcerated at a

penal institution.   Petitioner listed his occupation as beggar on

his 1996 and 1997 Federal income tax returns.    In 1996,

petitioner received money from family and friends in the amount

of $1,000.   In 1997, petitioner received money from family and

friends in the amount of $1,150.   The family and friends who

provided the money to petitioner had no expectation of repayment.

During the years in issue, petitioner did not earn any income

working for the prison.

     Petitioner reported income from begging in the amount of

$1,000 on his 1996 Federal income tax return and claimed an

earned income credit in the amount of $78.   Likewise, on his 1997

income tax return petitioner reported income from begging in the

amount of $1,150 and claimed an earned income credit in the

amount of $90.

     Petitioner is not entitled to the earned income credit he

claimed on his 1996 and 1997 tax returns.    An eligible individual
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is allowed an earned income credit for the taxable year in an

amount equal to the credit percentage of so much of the

taxpayer's earned income as does not exceed the earned income

amount.   See sec. 32(a).   Earned income includes wages, salaries,

tips, and other employee compensation.       See sec. 32(c)(2)(A)(i).

     The money petitioner received from begging does not meet the

definition of earned income provided by section 32.        Rather, the

money petitioner received from his family and friends was

received as a gift.   A gift is a transfer that proceeds from a

"’detached and disinterested generosity,’ * * * out of affection,

respect, admiration, charity or like impulses."        Commissioner v.

Duberstein, 363 U.S. 278, 285 (1960) (quoting Commissioner v.

LoBue, 351 U.S. 243, 246 (1956)).    In this case, petitioner's

friends and family did not have an expectation of repayment or

economic benefit.   Instead, petitioner's family and friends

transferred money to petitioner with a detached and disinterested

generosity and out of charity.

     With respect to the earned income credit, petitioner had no

earned income and, therefore, is not entitled to the earned

income credit.

                                              Decision will be entered

                                         for respondent.
