                  T.C. Summary Opinion 2003-73



                     UNITED STATES TAX COURT



             ROBERT TERRENCE THOMPSON, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 8041-02S.                Filed June 12, 2003.


     Robert Terrence Thompson, pro se.

     Kathleen C. Schlenzig, for respondent.


     ARMEN, Special Trial Judge:    This case was heard pursuant to

the provisions of section 7463 of the Internal Revenue Code in

effect at the time that the petition was filed.1   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 in petitioner’s Federal


     1
        Unless otherwise indicated, all subsequent section
references are to the Internal Revenue Code in effect for 1999,
the taxable year in issue.
                               - 2 -

income tax for the taxable year 1999 in the amount of $2,091.

     The issues for decision are as follows:

     (1) Whether petitioner is entitled to a deduction for a

dependency exemption for his son Christopher William Thompson.

We hold that he is not.

     (2) Whether petitioner is entitled to head of household

filing status.   We hold that he is not.

     (3) Whether petitioner is entitled to an earned income

credit.   We hold that he is not.

     An adjustment to the amount of petitioner’s standard

deduction is a purely mechanical matter, the resolution of which

is dependent on our disposition of the disputed issue regarding

petitioner’s filing status.

Background2

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

found.3   Petitioner resided in Chicago, Illinois, at the time

that his petition was filed with the Court.




     2
       We decide the issues in this case without regard to the
burden of proof. Accordingly, we need not decide whether the
general rule of sec. 7491(a)(1) is applicable in this case. See
Higbee v. Commissioner, 116 T.C. 438 (2001).
     3
        In the parties’ Stipulation of Facts, respondent reserved
hearsay objections to three of petitioner’s exhibits. We
overrule those objections at this time. However, we accord no
weight to any unsupported and conclusory statement made in those
exhibits.
                                - 3 -

     Petitioner is the father of Christopher William Thompson

(Christopher), who was born on July 17, 1996, in Chicago,

Illinois.   Christopher’s mother is Michelle Renee Harris (Ms.

Harris).    Although petitioner and Ms. Harris lived together for a

period of time, they were never married.

     Around Christmas 1996, petitioner and Ms. Harris separated

and did not thereafter live together.   Subsequently, on or about

June 6, 1997, the Circuit Court of Cook County, Illinois (the

Cook County court) entered an order granting Ms. Harris sole

legal custody of Christopher and directing petitioner to pay

child support in the amount of $46 per week until July 17, 2014,

Christopher’s 18th birthday.   At no time relevant to the present

case did the Cook County court ever modify its order.

     In or about July 1998, Ms. Harris relocated permanently from

Chicago, Illinois, to Las Vegas, Nevada, and took Christopher

with her.   Petitioner acquiesced in the matter based on an

agreement with Ms. Harris that Christopher would be permitted to

visit petitioner and his family in Chicago.   In this regard, it

was contemplated that until Christopher reached the age of 5 and

began going to school in Las Vegas, he would spend several months

in Chicago twice a year with petitioner and his family.

     On or shortly after December 4, 1998, petitioner’s sister

Rhonda Thompson (Ms. Thompson) traveled to Las Vegas and returned

to Chicago with Christopher for a visit with petitioner and his
                                - 4 -

family.    On or shortly after March 3, 1999, Ms. Thompson returned

Christopher to his mother in Las Vegas.

     On or shortly after June 13, 1999, Christopher was again

brought to Chicago for another visit with petitioner and his

family.    On or shortly after September 5, 1999, Christopher was

returned to his mother in Las Vegas.

     Petitioner filed a Federal income tax return for 1999.    On

his return, petitioner listed his filing status as head of

household, and he claimed both a deduction for a dependency

exemption for Christopher and an earned income credit based on

Christopher as the qualifying child.    Also on his return,

petitioner reported adjusted gross income in the amount of

$21,499.

Discussion

     A.    Deduction for Dependency Exemption

     Section 151(a) authorizes deductions for the exemptions

provided by that section.    In particular, and as relevant herein,

section 151(c)(1)(B) provides an exemption for each dependent, as

defined in section 152, who is a child of the taxpayer and who

has not attained the age of 19 at the close of the calendar year

in which the taxable year of the taxpayer begins.

     As relevant herein, section 152(a)(1) defines the term

“dependent” to include a taxpayer’s child over half of whose

support, for the calendar year in which the taxable year of the
                              - 5 -

taxpayer begins, is treated under section 152(e) as received from

the taxpayer.

     In the case of a child of parents who live apart at all

times during the last 6 months of the calendar year, section

152(e)(1) provides as a general rule that the child shall be

treated as receiving over half of his or her support during the

calendar year from the parent having custody for the greater

portion of the calendar year (the custodial parent).   Although

there are exceptions to this general rule, see sec. 152(e)(2) to

(4), none of the exceptions apply in the present case.4

     As relevant herein, section 1.152-4(b), Income Tax Regs.,

provides that custody means legal custody, which is determined by

the terms of the relevant court order.   Thus, in the present

case, because Ms. Harris had legal custody of Christopher

throughout 1999, she was the custodial parent, and petitioner was

the noncustodial parent.5



     4
        Petitioner contends that he and Ms. Harris had an oral
agreement that he could claim Christopher as a dependent.
Although sec. 152(e)(2) permits the custodial parent to release
her claim to a dependency exemption for the year, the statute
requires: (1) The custodial parent sign a written declaration to
that effect, and (2) the noncustodial parent attach such
declaration to his return.
     5
        Even if the applicable standard were physical custody
rather than legal custody, Ms. Harris would still be the
custodial parent and petitioner the noncustodial parent. In this
regard, see the discussion infra regarding filing status in
subdivision B of this opinion.
                                - 6 -

      To summarize:   The general rule of section 152(e)(1) serves

to assign the dependency exemption for a child to the custodial

parent.    Therefore, because petitioner was the noncustodial

parent, he is not entitled to claim Christopher as his dependent.

Id.   In view of the foregoing, we sustain respondent’s

determination on this issue.

      B.   Filing Status

      As relevant herein, an individual qualifies as a head of

household if the individual is not married at the close of the

taxable year and maintains as his or her home a household that

constitutes for more than one-half of the taxable year, the

principal place of abode of a child of the taxpayer.    See sec.

2(b)(1)(A)(i).

      Although petitioner maintained a residence for Christopher

that may have been Christopher’s place of abode during his son’s

visits to Chicago, the record does not demonstrate that

petitioner’s residence was Christopher’s principal place of abode

for more than half of the year.    Thus, in 1999, Christopher spent

only about 146 days with petitioner in Chicago, a period that is

considerably less than half of the year.6   In contrast,

Christopher spent more than half of the year with his mother in


      6
        Jan. 1, 1999 through Mar. 3, 1999 constitutes 62 days,
and June 13, 1999 through Sept. 5, 1999 constitutes 84 days.
Together, these two periods equal 146 days, which is 37 days
short of being more than half of the year.
                                 - 7 -

Las Vegas.   It follows, therefore, that petitioner is not

entitled to head of household filing status.    Respondent’s

determination on this issue is sustained.

     C.   Earned Income Credit

     In the case of an eligible individual, section 32(a) allows

an earned income credit against the individual’s income tax

liability.   As relevant herein, an “eligible individual” is

defined as an individual who has a “qualifying child” for the

taxable year.7   Sec. 32(c)(1)(A)(i).

     To be a “qualifying child”, an individual must, inter alia,

have the same principal place of abode as the taxpayer for more

than half of the taxable year.    Sec. 32(c)(3)(A)(ii).   However,

as previously discussed, Christopher spent less than half of 1999

with petitioner in Chicago.   Consequently, it cannot be said that

petitioner’s residence was Christopher’s principal place of abode

for more than half of the year.    It follows, therefore, that

petitioner is not entitled to an earned income credit.

Respondent’s determination on this issue is sustained.




     7
        An individual may be eligible for an earned income credit
even if the individual does not have a “qualifying child” for the
taxable year. Sec. 32(c)(1)(A)(ii). However, as relevant
herein, such an individual would be eligible only if the
individual’s adjusted gross income were less than $10,200. In
the present case, petitioner’s adjusted gross income was $21,499;
accordingly, petitioner would not be eligible for an earned
income credit without a “qualifying child”.
                             - 8 -

    D.   Conclusion

    Reviewed and adopted as the report of the Small Tax Case

Division.

    To give effect to our disposition of the disputed issues,



                                          Decision will be entered

                                     for respondent.
