                    T.C. Summary Opinion 2002-89



                      UNITED STATES TAX COURT



                  ATOUMANE NDOYE, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 10420-01S.            Filed July 15, 2002.



     Atoumane Ndoye, pro se.

     Linda J. Wise, for respondent.



     LARO, Judge:   This case was heard pursuant to section 7463.1

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

and this opinion should not be cited as authority.

     Petitioner petitioned the Court to redetermine respondent’s

determination of a $2,754 deficiency in petitioner’s 1998 Federal


     1
       Section references are to the applicable versions of the
Internal Revenue Code. Rule references are to the Tax Court
Rules of Practice and Procedure.
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income tax.   The issues for decision are whether petitioner is

entitled to (1) a deduction for certain dependency exemptions and

(2) a child tax credit which he claimed on his 1998 Federal

income tax return.   We decide both issues in the negative.

     The parties have stipulated some of the facts.   Their

stipulation of facts and the exhibits submitted therewith are

incorporated herein by this reference.   Petitioner resided in

Montgomery, Alabama, when his petition was filed.

     Petitioner filed a 1998 Federal income tax return, using the

filing status of “Head of Household”.    On that return, he claimed

a dependency exemption deduction for five children (collectively,

the children) whom he listed as a (1) child named Abdoul A. Amar,

(2) child named Astou G. Amar, (3) niece named Asta M. Amar, (4)

niece named Maymouna A. Amar, and (5) nephew named Mohammed Diod.

He claimed on his return that two of the children, Abdoul A. Amar

and Astou G. Amar, qualified him for a $491 child tax credit

under section 24.

     On October 5, 2000, respondent mailed a letter to petitioner

requesting a list of persons who lived in his household, as well

as their relationships to him, their Social Security numbers, and

the number of months each person lived in petitioner’s household

during the taxable year.   Respondent also requested in his letter

that petitioner supply respondent with a copy of each dependent’s

birth certificate or green card.
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     Petitioner replied to respondent’s letter on or about

October 28, 2000, through a letter that (1) listed the name and

Social Security number of each of the children and (2) stated

that the children had lived with petitioner for all of 1998.

Petitioner asserted in his letter that he did not have any of the

children’s birth certificates (and thus was unable to provide

them to respondent) because he returned the children to Senegal

(with their birth certificates) because of the high cost of

supporting them in his household in the United States.

     Rule 142(a)(1) states that “the burden of proof shall be

upon the petitioner, except as otherwise provided by statute or

determined by the Court”.   Section 7491(a)(1) provides that the

burden of proof is on the Commissioner if the “taxpayer

introduces credible evidence with respect to any factual issue

relevant to ascertaining the liability of the taxpayer for any

tax imposed”.   We hold that petitioner has failed to introduce

any credible evidence as to the relevant issue; thus, he has

failed to meet the requirements of section 7491(a).   Howard v.

Commissioner, T.C. Memo. 2002-85; Marks v. Commissioner, T.C.

Memo. 2002-4; see also sec. 7491(b) (section 7491(a) applicable

only when, as is not the case here, (1) the taxpayer has complied

with the requirements to substantiate the item and (2) the

taxpayer maintained the required records and has cooperated with

reasonable requests by the Commissioner).   Respondent’s
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determination is presumed to be correct, and petitioner must

prove it wrong.   Welch v. Helvering, 290 U.S. 111, 115 (1933).

1.   Dependency Exemption

     Section 151(c) allows a taxpayer to claim as a deduction an

exemption amount for each of his or her dependents.   Sections 151

and 152 lay out the following five tests that a taxpayer must

meet in order to claim another person as a dependent: (1) Support

test, (2) relationship or household test, (3) citizenship or

residency test, (4) gross income test, and (5) joint return test.

If the taxpayer fails any of these tests, he or she may not claim

the person as a dependent.

     As to the support test, the taxpayer must provide over half

of a claimed dependent’s support for the calendar year in which

the taxable year of the taxpayer begins.   Sec. 152(a).   The

support test requires the taxpayer to establish the total support

costs for the claimed individual and that the taxpayer provided

at least half of that amount.    Archer v. Commissioner, 73 T.C.

963, 967 (1980); see Cotton v. Commissioner, T.C. Memo. 2000-333;

Gulvin v. Commissioner, T.C. Memo. 1980-111, affd. 644 F.2d 2

(5th Cir. 1981); Toponce v. Commissioner, T.C. Memo. 1968-101.     A

taxpayer who cannot establish the total amount of support costs

for the claimed individual generally may not claim that

individual as a dependent.   Blanco v. Commissioner, 56 T.C. 512,

514-515 (1971); Cotton v. Commissioner, supra.
                                - 5 -

     In Newman v. Commissioner, T.C. Memo. 1984-416, the Court

held that a taxpayer was not entitled to a dependency deduction

for his daughter because he was unable to provide a birth

certificate for her and did not establish that there would be any

difficulty in securing a birth certificate.   Here, similarly,

petitioner has failed to provide a birth certificate for each of

the children.   Although he has testified that the children’s

birth certificates are with the children in Senegal, he has

failed to introduce any evidence to substitute for the birth

certificates.

     Petitioner has not presented any evidence regarding the

total cost of the support for any of the dependents, nor the

portion of the total support he provided.    Petitioner has failed

to meet either the support test or the relationship or household

test and is not eligible to claim a dependency exemption

deduction for any of the children in 1998.

2.   Child Tax Credit

     Respondent determined that petitioner was not entitled to

the claimed child tax credit.   Section 24 provides for a credit

against tax for each qualifying child of the taxpayer.   Section

24(c)(1) defines a qualifying child as any individual if:

          (A) the taxpayer is allowed a deduction under
     section 151 with respect to such individual for the
     taxable year,
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          (B) such individual has not attained the age of
     17 as of the close of the calendar year in which the
     taxable year of the taxpayer begins, and

          (C) such individual bears a relationship to the
     taxpayer described in section 32(c)(3)(B).

Because petitioner is not allowed a deduction under section 151

with respect to any of the children, he does not have any

eligible or qualifying children.   It therefore follows that he is

not entitled to a child tax credit under section 24(a), and we so

hold.

                                           Decision will be entered

                                      for respondent.
