                  T.C. Summary Opinion 2007-13



                     UNITED STATES TAX COURT



                WILLIAM H. JORDAN, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent


     Docket No. 22562-04S.              Filed January 22, 2007.


     William H. Jordan, pro se.

     Robert W. Dillard, for respondent.



     COUVILLION, Special Trial Judge:     This case was heard

pursuant to section 7463 in effect when the petition was filed.1



     1
      Unless otherwise indicated, section references hereafter
are to the Internal Revenue Code in effect for the year at issue,
and all Rule references are to the Tax Court Rules of Practice
and Procedure. Sec. 7491 in some instances shifts the burden of
proof to the Commissioner. Petitioner has neither alleged nor
established that he has satisfied the requirements of that
section. To the extent that respondent may have had the burden
of proof in this case, the Court is satisfied that respondent met
that burden.
                                - 2 -


The decision to be entered is not reviewable by any other Court,

and this opinion should not be cited as authority.

     Respondent determined a deficiency of $4,359 in petitioner’s

Federal income tax for the year 2003.

     After a concession by petitioner, noted hereafter, the

issues for decision are whether, for the year 2003, petitioner is

entitled to (1) a dependency exemption deduction for his son

under section 151(c); (2) head-of-household filing status under

section 2(b)(1); and (3) the earned income credit under section

32(a).

     Some of the facts were stipulated.    Those facts, with the

exhibits annexed thereto, are so found and are made part hereof.

Petitioner’s legal residence at the time the petition was filed

was Dunedin, Florida.

     On his Federal income tax return for 2003, petitioner

reported wage income of $16,756.    Petitioner was employed part

time on the golf course of a country club as an irrigation

technician.    He had no other employment during 2003 and no other

income.    Petitioner had a son and a daughter who were 22 years

old and 19 years old, respectively, in 2003.    The two mothers of

the children provided no support to them during the year at

issue.    Petitioner was not married during 2003.

     During the year at issue, the son earned $13,357, and the

daughter earned $20,096.    Petitioner filed a Federal income tax
                                 - 3 -


return for the year 2003 as a head-of-household and claimed the

son and daughter as dependents.    Petitioner also claimed an

earned income credit of $3,563.

     In the notice of deficiency, respondent disallowed the

dependency exemption deductions for the son and daughter, changed

petitioner’s filing status to single, and disallowed the earned

income credit.    At trial, petitioner conceded he was not entitled

to the dependency exemption deduction for his daughter because

her income exceeded his income.

     With respect to the claimed dependency exemption deduction

for the son, section 151(c) allows taxpayers to deduct an annual

exemption amount for each dependent, as defined in section 152,

whose gross income for the year is less than the exemption

amount.    Sec. 151(c)(1)(A).   Under section 151(d), the exemption

amount is $2,000.    Petitioner’s son, during the year at issue,

earned income of $13,357.    Therefore, since petitioner’s son

earned gross income in excess of the exemption amount under

section 151(c)(1)(A), it follows that petitioner is not entitled

to a dependency exemption deduction for his son for the year at

issue.    Respondent, therefore is sustained on this issue.2


     2
      Sec. 151(c)(1)(B) provides generally that a dependency
exemption deduction is allowed for a claimed dependent if the
claimed dependent has not attained age 24 at the close of the
taxable year and is a student. Even though petitioner’s son was
enrolled as a student at St. Petersburg College during the year
                                                   (continued...)
                               - 4 -


     The second issue is whether petitioner is entitled to head-

of-household filing status under section 2(b).    Section 2(b)

defines a head-of-household as an individual taxpayer who (1) is

not married at the close of his taxable year, and (2) maintains

as his home a household which constitutes “for more than one-half

of such taxable year” the principal place of abode of an

unmarried son or daughter of the taxpayer.    Sec. 2(b)(1)(A)(i).

An individual maintains a household if he furnishes over half the

cost of maintaining the household.     Sec. 2(b)(1). Petitioner was

not married during the year at issue.

     The Court is satisfied from the record that petitioner’s two

children lived with him at least from May 30 through the end of

the year 2003.   While the two children may have contributed some

assistance in the operation of the household, the Court is

satisfied from the record that petitioner paid the rent,

utilities, and most of the food and other expenses, and whatever

the children provided appears to have been incidental.    On this

record, the Court sustains petitioner on this issue.




     2
      (...continued)
at issue and had not attained age 24 as of December 31 of the
year at issue, sec. 151(c)(4) defines “student” as an individual
who, during each of 5 calendar months during the calendar year is
a “full-time” student at the institution. Petitioner’s son’s
transcript issued by the school he attended shows that he was not
a full-time student during the year at issue.
                               - 5 -


     The third issue is petitioner’s claim to the earned income

credit under section 32(a).

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

case of an eligible individual.   Section 32(c)(1)(A), in

pertinent part, defines an “eligible individual” as an individual

who has a qualifying child for the taxable year.   Sec.

32(c)(1)(A)(i).   A qualifying child is one who satisfies a

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

identification requirement.   See sec. 32(c)(3).   To satisfy the

age test, the qualifying child must be an individual who has not

attained the age of 19 as of the close of the calendar year in

which the taxable year of the taxpayer begins or must be a

student (as defined in section 151(c)(4)) who has not attained

the age of 24 as of the close of the year.   Sec. 32(c)(3)(C).

Petitioner’s daughter attained age 19 in April 2003.   Because the

daughter does not satisfy the age test, she was not a qualifying

child for purposes of the earned income credit.    The son attained

the age of 22 during the 2003 tax year and was not a full-time

student.   Therefore, he likewise is not a qualifying child for

purposes of the earned income credit.   However, section

32(c)(1)(A)(ii) allows an earned income credit to an “eligible

individual” if such individual does not have a qualifying child

but satisfies the following conditions:
                              - 6 -


     (1) The individual’s principal place of abode was in the

United States for more than one-half of the taxable year;

     (2) the individual had attained age 25 and not attained age

65 on or before the close of the taxable year; and

     (3) the individual was not a dependent for whom a deduction

is allowable under section 151 to another taxpayer for the

taxable year at issue.

     Petitioner is not an eligible individual because his income

exceeded the completed phaseout amount prescribed by section

32(b) of $11,230 (with no qualifying children).    See Rev. Proc.

2002-70, sec. 3.06, 2002-2 C.B. 845, 847-848.    Respondent

therefore is sustained on this issue.

     Reviewed and adopted as the report of the Small Tax Case

Division.



                                      Decision will be entered

                               under Rule 155.
