                  T.C. Summary Opinion 2004-168



                     UNITED STATES TAX COURT



                 EVANS A. MBACHU, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 2914-04S.               Filed December 7, 2004.



     Evans A. Mbachu, pro se.

     John W. Sheffield III, for respondent.



     COUVILLION, Special Trial Judge:    This case was heard

pursuant to section 7463 of the Internal Revenue Code in effect

at the time the petition was filed.1    The decision to be entered




     1
          Unless otherwise indicated, subsequent section
references are to the Internal Revenue Code in effect for the
year at issue. Rule references are to the Tax Court Rules of
Practice and Procedure.
                                - 2 -


is not reviewable by any other court, and this opinion should not

be cited as authority.

     Respondent determined a deficiency of $4,400 in petitioner’s

Federal income tax for 2002.    The issues for decision are whether

petitioner is entitled to head of household filing status under

section 2(b) and whether petitioner is entitled to 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 Marietta, Georgia.

     Petitioner filed a Federal income tax return for 2002 on

which he claimed two dependency exemption deductions for his

stepchildren, a child tax credit under section 24, and the earned

income credit under section 32(a).      Petitioner filed as a head of

household under section 2(b).   In the notice of deficiency,

respondent disallowed the two dependency exemption deductions,

the section 24 child tax credit and the section 32(a) earned

income credit and changed petitioner's filing status to married

filing separately.   At trial, respondent conceded petitioner's

entitlement to the two dependency exemption deductions.2     With


     2
          As a result of this concession, since the evidence at
trial satisfied the conditions of sec. 24(c)(1) relating to the
meaning of "qualifying child", the allowance of the dependency
                                                   (continued...)
                                - 3 -


these concessions, the issues remaining for decision are

petitioner's claim to head of household filing status under

section 2(b) and petitioner's claim to the section 32(a) earned

income credit.

     Petitioner has a master's degree in sociology and was

employed in a rehabilitation center for the mentally retarded.

During the year in question, petitioner was married to Charlene

Hill.    They were living separately and apart throughout the year

2002.    They have never been divorced or legally separated.

Petitioner and Ms. Hill have no children, although Ms. Hill has

five children from a previous marriage.    Respondent agrees that

petitioner is entitled to the dependency exemption deductions for

two of her children for the year at issue.    It is for these two

children that petitioner claims head of household filing status

and the earned income credit.

     Although the two children did not live full time with

petitioner during 2002, they spent time with him every year,

usually during the 3-month summer period when the children were

not in school.    Also, during the year, petitioner contributed



     2
      (...continued)
exemption deduction for the two children entitles petitioner to
the child tax credit under sec. 24. Under sec. 24(c)(1), a
qualifying child includes any individual who is a dependent under
sec. 151, has not attained the age of 17, and bears a
relationship to the taxpayer, which includes a stepchild. Sec.
24(c)(1)(A), (B), and (C).
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money to his wife for payment of her house rent, which petitioner

contends constituted his providing "accommodations" to the

children.   Petitioner also paid for the children's "fillings",

which the Court assumes was for their dental expenses.   The two

children were 13 and 14 years of age during the year 2002.

     With respect to the first issue, the claimed head of

household filing status, section 2(b) defines a head of household

as an individual taxpayer who (1) is not married at the close of

the taxable year and (2) maintains as his home a household which

constitutes the principal place of abode for more than one-half

of the taxable year of a stepson or stepdaughter of the taxpayer.

Sec. 2(b)(1)(A)(i).   Although petitioner was married and not

divorced at the close of the tax year in question, section 2(c)

provides that an individual shall be treated as not married at

the close of the taxable year if such individual is so treated

under section 7703(b).   Under section 7703(b)(3), a taxpayer who

maintains as his home a household which constitutes the principal

place of abode for more than one-half the year of a child for

whom he is entitled to a deduction under section 151 is deemed to

be "not married" if, during the last 6 months of the year at

issue, his spouse did not reside with him.

     Petitioner's spouse did not live with him during the last 6

months of the year 2002.   Respondent agrees that petitioner was

entitled to the dependency exemption deductions for the two
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children.   The remaining question is whether petitioner

maintained as his home a household that constituted the principal

place of abode for the two children for more than one-half of the

year.   Petitioner does not satisfy that requirement.   The

children lived with petitioner, at most, only 3 months during the

year.   At all other times, they lived with their mother.     The

mere fact that petitioner contributed or "provided

accommodations" by reimbursing his wife for the rent on her place

of abode is not considered maintaining a household where that

household did not constitute petitioner's home.   Sec. 1.2-

2(c)(1), Income Tax Regs.   The principal place of abode for the

two children was the residence of petitioner's wife, not

petitioner.   Therefore, petitioner was considered "married" under

section 7703(b).   It follows that, under section 2(b)(1),

petitioner is not entitled to head of household filing status for

the year 2002.

     The remaining issue is whether petitioner is entitled to the

earned income credit.   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.   Sec. 32(c)(3).   As relates to this
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case, section 32(c)(3)(A)(ii) defines, as one of the factors

constituting a "qualifying child", an individual who has the same

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

of the taxable year.   As concluded in the preceding discussion,

the two stepchildren did not have their principal place of abode

with petitioner for more than one-half of the taxable year 2002.

Petitioner, therefore, is not entitled to the earned income

credit for the year 2002.

     Reviewed and adopted as the report of the Small Tax Case

Division.



                                            Decision will be entered

                                       under Rule 155.
