                  T.C. Summary Opinion 2005-94



                     UNITED STATES TAX COURT



                   EARL GRIFFIN, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent


     Docket No. 16258-03S.           Filed July 20, 2005.


     Earl Griffin, pro se.

     Stewart Todd Hittinger, for respondent.



     COUVILLION, Special Trial Judge:   This case was heard
                                                                  1
pursuant to section 7463 in effect when the petition was filed.

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 of $2,161 in petitioner's

Federal income tax for 1998.



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


     After concessions by petitioner, the sole issue for decision

is whether petitioner is entitled to the earned income credit
                       2
under section 32(a).

     Some of the facts were stipulated, and those facts, with the

annexed exhibits, are so found and are incorporated herein by

reference.    At the time the petition was filed, petitioner's

legal residence was Gary, Indiana.

     Petitioner was previously married, and he and his spouse

divorced in either 1996 or 1997.    They had one child, a daughter,

who was 14 years of age as of the end of the 1998 taxable year.

Throughout the year at issue, the child lived with her mother in

California.

     For the year at issue, 1998, petitioner claimed his daughter

as a dependent on his Federal income tax return.    Respondent

agrees that petitioner was entitled to the dependency exemption

deduction because petitioner obtained the necessary consent from

his former spouse to claim the dependency exemption deduction for

that year.    The dependency exemption deduction is not an

adjustment in the notice of deficiency.



2
     In the notice of deficiency, respondent determined that
petitioner failed to report taxable interest income of $36 and
that petitioner was not entitled to head-of-household filing
status. At trial, petitioner conceded these adjustments and that
his filing status was single.
                               - 3 -


     On his 1998 Federal income tax return, petitioner claimed an

earned income credit under section 32(a) in the amount of $1,861.

The entire amount of the credit was disallowed in the notice of

deficiency on the ground that the child did not reside with

petitioner during the year in question as required by section

32(c)(3)(A)(ii).   Petitioner’s concession of the head-of-

household issue confirms that the child did not live with

petitioner more than one-half of the taxable year as required by

section 32(c)(3)(A)(ii).

     Respondent agrees that, under section 32(c)(1)(A)(ii), a

taxpayer is entitled to the earned income credit if such taxpayer

does not have a qualifying child (as is the situation here) but

satisfies the following conditions:

     (1) The taxpayer’s principal place of abode was in the

United States for more than one-half of the taxable year;

     (2) the taxpayer had attained age 25 and not attained age 65

on or before the close of the taxable year; and

     (3) the taxpayer was not a dependent for whom a deduction is

allowable under section 151 to another taxpayer for the taxable

year at issue.   Sec. 32(c)(1)(A)(ii)(I), (II), and (III).

     While petitioner in this case satisfies these requirements,

there is a further limitation petitioner does not satisfy.

Section 32(b) provides a phaseout of the credit where the

taxpayer’s adjusted gross income exceeds certain prescribed
                                - 4 -


amounts.    Petitioner’s adjusted gross income (including the

amount conceded) was $14,843, and the limitation for that year

was $10,300.   Therefore, the Court agrees with respondent that

petitioner’s adjusted gross income exceeded the amount by which

he could have claimed an earned income credit under section

32(c)(1)(A)(ii).   Respondent, therefore, is sustained on this

issue.

     Reviewed and adopted as the report of the Small Tax Case

Division.



                                             Decision will be entered

                                        for respondent.
