                       T.C. Memo. 2000-105



                     UNITED STATES TAX COURT



              JAMES E. BRIGGSDANIELS, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 13657-98.                Filed March 28, 2000.



     James E. Briggsdaniels, pro se.

     Laura B. Belote, for respondent.



             MEMORANDUM FINDINGS OF FACT AND OPINION


     DEAN, Special Trial Judge:   Respondent determined

deficiencies in petitioner’s Federal income taxes of $2,159 for

1995 and $3,614 for 1996.
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     The issues for decision are:    (1) Whether petitioner is

entitled to head of household filing status;1 (2) whether

petitioner is entitled to deductions for dependency exemptions;

and (3) whether petitioner is entitled to an earned income

credit.

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

The stipulation of facts and the attached exhibits are

incorporated herein by reference.    Unless otherwise indicated,

all section references are to the Internal Revenue Code in effect

for the years at issue.

                          FINDINGS OF FACT

     Petitioner resided in San Jose, California, at the time the

petition in this case was filed.

     Petitioner, James E. Briggsdaniels, is also known as James

E. Briggs and James E. Daniels.    Petitioner has never been

married.   He has three sons by Charlene Riley:   (1) James E.

Daniels, Jr., born May 17, 1979; (2) Jamar E. Daniels, born

December 30, 1980; and (3) Jeremy E. Daniels, born May 15, 1982.

     James E. Daniels, Jr., was in juvenile custody in Santa

Clara County (County), California, from February 25 to May 21,

1995, from June 21 through September 24, 1995, and from March 23

through July 3, 1996.   Jeremy E. Daniels was in juvenile custody


     1
      Our resolution of the issue of petitioner's filing status
will determine the correct computation of his standard deduction
for the years at issue.
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from August 29 to September 1, 1996, and from October 19, 1996,

to March 18, 1997.

     On July 16, 1996, a complaint was filed in the Superior

Court of California in the case of County of Santa Clara v.

Daniels, No. DA051877, to establish petitioner’s parental

relationship to James, Jamar, and Jeremy Daniels and to collect

reimbursement of child support payments made by the County.    As

part of the litigation, Mary Schriver, eligibility examiner for

the Social Services Agency (SSA) of the County, filed an

affidavit stating that SSA had paid various sums of money in

support of petitioner’s children.   The affidavit filed by the

examiner states that SSA has paid, in the form of AFDC “Family

Grant” payments for one child, $3,588 in 1995, and for one child

for 10 months and two children for 2 months, $4,140 in 1996.     In

addition, SSA was stated to have made foster care payments for

James Daniels, Jr. of $20,625.86 from July through December of

1996, and for Jamar Daniels $5,445 in 1995 and $700.98 in 1996.

In an attachment to the affidavit, Katherine Swayzer, maternal

aunt, is listed as the “payee/caretaker”.

     Judgment was entered in favor of the County on May 18, 1999,

finding that petitioner’s paternity was established and that he

was liable for child support payments for the period July 1993

through March 1999.2

     2
      Respondent objects to the judgment as irrelevant. We find
the judgment to be evidence relevant to the amount of support
provided to the children in 1995 and 1996. We overrule the
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                               OPINION

Head of Household

     Section 1(b) imposes a special tax rate on individuals

filing as “heads of households”.    “Head of household” is defined

in section 2(b) as an unmarried individual whose household is

maintained as the principal place of abode for specific family

members.    If a taxpayer provides over half the cost of

maintaining as his home a household that for more than one-half

the year was his sons’ principal place of abode, he meets the

head of household definition in section 2(b)(1).

     Evidence in the record shows that James Daniels for several

months in 1995 and 1996 and Jeremy Daniels for several months in

1996 were wards of the County.    They were in custody, according

to petitioner, “for running away.”       There is also evidence that

James and Jamar Daniels spent time in foster care in 1995 and

1996.    Social Service payments for his sons were not paid to him,

petitioner testified; they were paid to “Katherine Swayzer, or

either Prince Swayzer and Veronica Swayzer”, the boys’ aunts and

uncle.    Katherine Swayzer is listed in Social Service documents

as “caretaker”.

     Referring to James and Jeremy Daniels’ periods of custody,

petitioner testified:    “But out of all that time, although they

did not live personally with me, I was still responsible for


objection and admit it into evidence.
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providing their support” whether they were in custody, or at a

foster or group home.   Jamar, according to petitioner, stayed

with his aunt, Katherine Swayzer, and with petitioner.   He stayed

with his aunt so that “he could go to a particular school”.

     Petitioner submitted copies of miscellaneous receipts and

invoices for a variety of items including drycleaning bills,

invoices for storage payments, motel receipts, grocery receipts,

Lotto receipts, and receipts for pet supplies and other items.

Almost all the receipts and invoices were in the name of “James

E. Daniels”.    There is evidence of the payment of auto insurance

and registration of an automobile in the joint names of James and

Jamar Briggs, but Jamar (Briggs) Daniels was not able to legally

drive until December of 1996.   There is nothing in the record,

however, to indicate that petitioner provided over half the cost

of maintaining as his home a household that for more than one-

half the year was any of his sons’ principal place of abode in

1995 or 1996.

     Petitioner has not shown that he qualifies for head of

household filing status for either year in suit, and respondent’s

determination on this issue is sustained.

Dependency Exemptions

     Section 151(c)(1) allows a taxpayer to claim an exemption

deduction for each qualifying dependent.    A child of the taxpayer

is considered a “dependent” so long as the child has not attained
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the age of 19 (24 if the child is a student) at the close of the

taxable year, and more than half the dependent’s support for the

taxable year was received from the taxpayer.   Secs. 151(c)(1)(B),

152(a).

     In order for petitioner to establish that he provided more

than half of the support of any of his sons, he must first show

by competent evidence the total amount of support furnished for

each of them by all sources for the years at issue.   Blanco v.

Commissioner, 56 T.C. 512, 514 (1971).   Petitioner has not

provided complete evidence of the total amount of support

provided for James, Jeremy, or Jamar Daniels for any year at

issue.

     There is, on the other hand, evidence that supports

respondent’s determination that petitioner did not supply over

half the children’s support.   Considering the judgment of the

Superior Court of California in County of Santa Clara v. Daniels,

supra, it appears that petitioner failed to pay child support for

the boys from 1993 through 1999.   The evidence indicates that the

children were supported by the County3 and by their maternal

aunts and uncle.

     Accordingly, respondent’s determination that petitioner’s

sons are not his dependents for section 151 purposes is


     3
      See Lutter v. Commissioner, 514 F.2d 1095 (7th Cir. 1975)
(AFDC payments constitute support by the State not by the
parent), affg. 61 T.C. 685 (1974).
                               - 7 -

sustained.

Earned Income Credit

     Petitioner claimed the earned income credit for 1995 and

1996 for two “qualifying” children, Jeremy Briggs and Jamar

Briggs.   Respondent determined that petitioner is not entitled to

the earned income credit for either year.

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

income credit against the individual’s income tax liability.

Section 32(a)(2) limits the credit allowed, and section 32(b)

prescribes different percentages and amounts used to calculate

the credit based on whether the eligible individual has no

qualifying children, one qualifying child, or two or more

qualifying children.

     To be eligible to claim an earned income credit with respect

to a qualifying child, a taxpayer must establish, inter alia,

that the child bears the relationship to the taxpayer prescribed

by section 32(c)(3)(B), the child meets the age requirements of

section 32(c)(3)(C), and the child shares the same principal

place of abode as the taxpayer for more than one-half of the

taxable year as prescribed by section 32(c)(3)(A)(ii).

     James, Jeremy, and Jamar Daniels satisfy the relationship

and age tests, but petitioner has offered no evidence to

establish that any of his three sons shared his residence for

more than one-half of either year at issue.
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     Although petitioner is not eligible to claim an earned

income credit under section 32(c)(1)(A)(i) for a qualifying

child, he may be an “eligible individual” under section

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

     An individual without a qualifying child is eligible for an

earned income credit subject to the phaseout limitations of

section 32(a)(2) if his principal place of abode is in the United

States for more than one-half the taxable year, he has attained

the age of 25 but not the age of 65, and he is not the dependent

of another for whom a deduction is allowable under section 151.

See sec. 32(c)(1)(A)(ii).

     The phaseout limitations are determined by the greater of

the taxpayer’s earned income or his “modified adjusted gross

income”.    See secs. 32(a)(1), (c)(2), (c)(5).   Petitioner’s

earned income and modified adjusted gross income was $21,085 for

1995 and $18,136 for 1996.    For tax year 1995, the earned income

credit is completely phased out under section 32(a)(2) for an

individual with no qualifying children if the individual’s earned

or modified adjusted gross income is equal to or in excess of

$9,230.    See Rev. Proc. 94-72, 1994-2 C.B. 811, 813.   For the

year 1996, the phaseout amount is $9,500.    See Rev. Proc. 95-53,

1995-2 C.B. 445, 446-447.

     Because petitioner did not have a qualifying child for 1995

or 1996 and had earned income and modified adjusted gross income
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exceeding the phaseout amounts for both years, petitioner is not

entitled to the earned income credit for either year.

     To reflect the foregoing,

                                              Decision will be entered

                                         for respondent.
