                  T.C. Summary Opinion 2009-194



                     UNITED STATES TAX COURT



                  MONTY E. STONE, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 28073-08S.             Filed December 15, 2009.



     Monty E. Stone, pro se.

     Nathan Hall, for respondent.



     PANUTHOS, Chief Special Trial Judge:    This case was heard

pursuant to the provisions of section 7463 of the Internal

Revenue Code in effect at the time the petition was filed.

Pursuant to Section 7463(b), the decision to be entered is not

reviewable by any other court, and this opinion shall not be

treated as precedent for any other case.    Unless otherwise

indicated, subsequent section references are to the Internal
                                - 2 -

Revenue Code in effect for the year in issue, and all Rule

References are to the Tax Court Rules of Practice and Procedure.

     Respondent determined a $3,740 deficiency in petitioner’s

2007 Federal income tax.   The issues for decision are whether

petitioner:   (1) Is entitled to a dependency exemption deduction

for J.M.;1 (2) is entitled to a child tax credit; and (3) is

entitled to an earned income credit (EIC).

                             Background

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

The stipulation of facts and the attached exhibits are

incorporated herein by this reference.    At the time the petition

was filed, petitioner resided in California.

     In 2006 petitioner was renting housing from his father and

living with his longtime girlfriend, Monica Mora (Ms. Mora).     Ms.

Mora was unemployed, and petitioner was the sole support of the

household.    This living situation continued throughout 2006 and

2007, although Ms. Mora would move out for periods and then

return to the home.    Ms. Mora was living with petitioner when she

gave birth to J.M. on April 27, 2006.     It was not until late 2007

or early 2008 that petitioner discovered through a DNA test that

J.M. was not his biological child.




     1
      The Court refers to minor children by their initials.    Rule
27(a)(3).
                                 - 3 -

     In October 2007 Ms. Mora moved out of petitioner’s home on a

more permanent basis, although she returned for temporary periods

thereafter.   Ms. Mora took J.M. with her for a few weeks and then

returned J.M. to petitioner.   Except for that single incident in

late 2007, J.M. resided with petitioner in his home throughout

2007.   Petitioner provided food, clothing, and shelter to J.M.

from the time of birth through at least the time of trial.    The

State of California provided some medical treatment to J.M., but

the amount expended for this care is not in the record.

     Ms. Mora signed a Form 8332, Release/Revocation of Release

of Claim to Exemption for Child by Custodial Parent, for the 2007

taxable year on July 16, 2009.

     As indicated, on August 15, 2008, respondent issued a notice

of deficiency determining a deficiency of $3,740.   Only the face

page and waiver page of the notice of deficiency were included in

the record.   The parties have not stipulated the tax return, nor

have they provided the examination report.   From the record,

including respondent’s pretrial memorandum, the adjustments

reflect that respondent determined that petitioner is ineligible

for the claimed dependency exemption deduction, the EIC, and a

child tax credit.
                               - 4 -

                            Discussion

     In general, the Commissioner’s determinations set forth in a

notice of deficiency are presumed correct, and the taxpayer bears

the burden of showing that the determinations are in error.     Rule

142(a); Welch v. Helvering, 290 U.S. 111, 115 (1933).     Deductions

are a matter of legislative grace.     Deputy v. du Pont, 308 U.S.

488, 493 (1940); New Colonial Ice Co. v. Helvering, 292 U.S. 435,

440 (1934).   A taxpayer bears the burden of proving entitlement

to any deduction claimed.   Rule 142(a); INDOPCO, Inc. v.

Commissioner, 503 U.S. 79, 84 (1992); Welch v. Helvering, supra;

Wilson v. Commissioner, T.C. Memo. 2001-139.    A taxpayer is

required to maintain records sufficient to substantiate

deductions claimed on his or her income tax return.    Sec. 6001;

sec. 1.6001-1(a), (e), Income Tax Regs.    The fact that a taxpayer

reports a deduction on the taxpayer’s income tax return is not

sufficient to substantiate the claimed deduction.     Wilkinson v.

Commissioner, 71 T.C. 633, 639 (1979); Roberts v. Commissioner,

62 T.C. 834, 837 (1974). Rather, an income tax return is merely a

statement of the taxpayer’s claim; it is not presumed to be

correct.   Wilkinson v. Commissioner, supra at 639; Roberts v.

Commissioner, supra at 837; see also Seaboard Commercial Corp. v.

Commissioner, 28 T.C. 1034, 1051 (1957) (a taxpayer’s income tax

return is a self-serving declaration that may not be accepted as

proof for the claimed deduction or exclusion); Halle v.
                                - 5 -

Commissioner, 7 T.C. 245 (1946) (a taxpayer’s income tax return

is not self-proving as to the truth of its contents), affd. 175

F.2d 500 (2d Cir. 1949).

     Pursuant to section 7491(a), the burden of proof as to

factual matters shifts to the Commissioner under certain

circumstances.   Petitioner has neither alleged that section

7491(a) applies nor established his compliance with the

substantiation and recordkeeping requirements.     See sec.

7491(a)(2)(A) and (B).   Petitioner therefore bears the burden of

proof.   See Rule 142(a).

I.   Dependency Exemption Deduction

     A taxpayer is entitled to a dependency exemption deduction

only if the claimed dependent is a “qualifying child” or a

“qualifying relative” as defined under section 152(c) and (d).

Sec. 152(a).   A qualifying child is defined as the taxpayer’s

child, brother, sister, stepbrother, or stepsister, or a

descendant of any of them.    Sec. 152(c)(1) and (2).   The term

“child” includes a legally adopted individual and a foster child

placed in the care of the taxpayer by an authorized placement

agency or by a court order.    Sec. 152(f)(1).   J.M. is not a

qualifying child because he is not related to petitioner and is

not an adopted or foster child.

     An individual who is not a qualifying child may still, under

certain conditions, qualify as a dependent if he or she is a
                                - 6 -

qualifying relative.   Sec. 152(a).     Under section 152(d)(1), a

qualifying relative is an individual:      (A) Who bears a qualifying

relationship to the taxpayer; (B) whose gross income for the year

is less than the section 151(d) exemption amount; (C) who

receives over one-half of his or her support from the taxpayer

for the taxable year; and (D) who is not a qualifying child of

the taxpayer or of any other taxpayer for the taxable year.

     Section 152(d)(2)(A)-(H) lists eight types of qualifying

relationships, seven of which involve various familial

relationships which do not apply to the circumstances herein.

The eighth type of qualifying relationship applies to an

individual, other than the taxpayer’s spouse, who has the same

principal place of abode as the taxpayer and is a member of the

taxpayer’s household for the taxable year.      Sec. 152(d)(2)(H).

In order for an individual to be considered a member of a

taxpayer’s household, the taxpayer must maintain the household

and both the taxpayer and the individual must occupy the

household for the entire taxable year.      Sec. 1.152-1(b), Income

Tax Regs.   A temporary absence from the household will not

prevent an individual from being considered as living with the

taxpayer for the entire year.    Id.    A taxpayer maintains a

household when he or she pays more than one-half of the expenses

for the household.   See sec. 2(b); Rev. Rul. 64-41, 1964-1 C.B.

(Part 1) 84, 85.
                               - 7 -

     The Court is satisfied that J.M. resided with petitioner and

had the same principal place of abode as petitioner.     The Court

is further satisfied that no individual other than petitioner

supported J.M. and that the child had no other source of income

or support besides his medical care provided for by the State of

California.2   Since J.M. had no other source of income or

support, we assume for purposes of the test that petitioner

provided more than one-half of J.M.’s support as defined in

section 1.152-1(a)(2), Income Tax Regs.     Additionally, petitioner

paid rent and provided food for the home; there is no evidence of

another source of maintenance of the household as defined in

section 1.2-2(d), Income Tax Regs.     Thus, petitioner has

satisfied section 152(d)(1)(A)-(C).

     Section 152(d)(1)(D) requires a qualifying relative to be

neither the petitioner’s qualifying child nor the qualifying

child of any other taxpayer.   As stated above, J.M. is not

petitioner’s qualifying child; however, J.M. is the qualifying

child of Ms. Mora.   A qualifying child must meet all of the

following requirements:   (1) Bear a relationship to the taxpayer

such as son or daughter, (2) have the same principal place of

abode as the taxpayer for more than one-half of the taxable year

(3) be under the age of 19, and (4) not provide more than one-


     2
      The record is void of any detail as to amounts expended for
medical care, and we decline to speculate as to the amounts
provided.
                               - 8 -

half of his own support.   Sec. 152(c).   J.M. is the qualifying

child of Ms. Mora because he is her son, Ms. Mora and J.M. had

the same principal place of abode for more than 6 months3 (albeit

with petitioner) in 2007, J.M. was 1 year old in 2007, and he did

not provide any of his own support.    Thus Ms. Mora meets all four

requirements for the year 2007.

     We are satisfied that petitioner provided and continued to

provide, as of the date of trial, the vast majority of J.M.’s

support and care.   However, since Ms. Mora is entitled to claim

J.M. as her qualifying child for 20074 and J.M. is not

petitioner’s biological child, nor has any agency placed the

child with him, petitioner is not entitled to the claimed

dependency exemption deduction for 2007.    Sec. 152(d)(1)(D).

     We recognize that petitioner treated J.M. as his child from

birth and, in fact, continued to so treat J.M. after he learned

that he was not J.M.’s biological father.    The requirements for a

dependency exemption deduction are complex, and the definitions

of “qualifying child” and “qualifying relative” are replete with

multiple tests for qualification.   Despite petitioner’s good



     3
      Ms. Mora resided with petitioner from at least Apr. 26,
2006, to sometime in October 2007. Additionally, petitioner
testified that she would move back in with him for periods before
April 2006 and after she left in October 2007.
     4
      The Form 8332 has no legal effect here, since the form
applies only in a situation where a noncustodial “parent” is
seeking to claim a child for a dependency exemption.
                                - 9 -

intentions of providing a home and support for J.M., petitioner

does not meet the tests set forth in the labyrinth of subsections

enacted by Congress.

II.   Earned Income Credit

      An eligible individual is entitled to a credit against his

Federal income tax liability, calculated as a percentage

of his earned income, subject to certain limitations.   Sec.

32(a)(1); Rowe v. Commissioner, 128 T.C. 13, 15 (2007).

Different percentages and amounts are used to calculate the EIC,

depending on whether the eligible individual has no qualifying

children, one qualifying child, or two or more qualifying

children.   Sec. 32(b); Rowe v. Commissioner, supra at 15.     A

“qualifying child” means a qualifying child of the taxpayer as

defined in section 152(c).    Sec. 32(c)(3)(A).

      As previously discussed, J.M. is not petitioner’s qualifying

child; thus, petitioner is not entitled to the EIC with one

qualifying child for 2007.5

III. Child Tax Credit

      Section 24(a) provides a credit with respect to each

qualifying child of the taxpayer.    Section 24(c)(1) defines the

term “qualifying child” as “a qualifying child of the taxpayer



      5
      Since the tax return has not been made part of the record,
we cannot opine as to the amount of any EIC (without a qualifying
child) petitioner would be entitled to on the basis of his
income.
                              - 10 -

(as defined in section 152(c)) who has not attained age 17.”6

The child tax credit may not exceed the taxpayer’s regular

tax liability.   Sec. 24(b)(3).   Where a taxpayer is eligible for

the child tax credit, but the taxpayer’s regular tax liability is

less than the amount of the child tax credit potentially

available under section 24(a), section 24(d) makes a portion of

the credit, known as the additional child tax credit, refundable.

     Since J.M. is not petitioner’s qualifying child, petitioner

is not entitled to the child tax credit or the additional child

tax credit.

     To reflect the foregoing,7


                                          Decision will be entered

                                     under Rule 155.




     6
      The credit is reduced by $50 for each $1,000 (or fraction
thereof) by which an individual’s modified adjusted gross income
exceeds $110,000 in the case of a joint return, $75,000 in the
case of an unmarried individual, and $55,000 in the case of a
married individual filing a separate return. Sec. 24(b).
     7
      Because petitioner may be entitled to a lesser EIC as a
result of our conclusions, we will enter the decision under Rule
155.
