                   T.C. Summary Opinion 2009-20



                      UNITED STATES TAX COURT



                ELIGIO VILLASENOR, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 6760-07S.              Filed February 10, 2009.



     Eligio Villasenor, pro se.

     Angela B. Friedman, for respondent.



     GOLDBERG, 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 Revenue Code in effect for
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the year in issue, and all Rule references are to the Tax Court

Rules of Practice and Procedure.

     The issues for decision are whether for 2005 petitioner is

entitled to:   (1) Dependency exemption deductions for his

parents, (2) a dependency exemption deduction for his girlfriend,

and (3) head of household filing status.

                            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.    Petitioner resided in

Illinois when he filed his petition.

     Petitioner has been working the second shift in a Chicago

breadmaking factory since 1995.    In 2005 petitioner’s gross

income consisted of $40,412 from his job and $1,667 in interest

income.

     Throughout 2005 petitioner lived in a two-bedroom, one-

bathroom apartment in Chicago, paying $650 a month in rent, which

included gas and electricity.   He paid another $80 per month for

telephone and cable television, and approximately $400 per month

for food.   He also paid approximately $641 per month in child

support to Roxanna Ramirez, the mother of his two sons.     The boys

lived with Ms. Ramirez.   Ms. Ramirez claimed the boys as

dependents on her 2005 Federal income tax return.
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     Petitioner has 11 brothers and sisters, 9 of whom live in

the United States.   Some of the U.S.-based siblings live in

Chicago, with the rest in Michigan and Iowa.   Petitioner’s

parents, Hipolito and Eulalia Villasenor, in their late seventies

or early eighties, resided intermittently in the United States

and also maintained a house in their home state of Michoacan,

Mexico.   Beginning in 2004 the Villasenors began staying

regularly in the United States during the warmer weather months

and then returning annually to Mexico from October until May or

June.

     Petitioner’s eight brothers alternate in sending monthly

checks of approximately $250 to their parents such that the elder

Villasenors receive approximately $2,000 to $3,000 a year in

support from the siblings.   During his parents’ 2005 stay in the

United States, petitioner paid approximately $1,000 for their

clothing, provided for their necessities, and gave them spending

money.

     Neither of petitioner’s parents received cash assistance

from the U.S. or Mexican Government during 2005, and they did not

have health insurance.   However, while in Mexico, Hipolito

Villasenor earned a little income selling milk from his four cows

there.    In addition, during 2005 Hipolito Villasenor earned wages

of $6,319 in the United States from PPC Industries, Inc., a

manufacturer located approximately 45 miles north of Chicago.
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The elder Villasenors also received Medicaid benefits, which paid

for some of their medications and doctor’s visits.

     Petitioner’s parents both have U.S. Social Security numbers

(SSNs), and the Court received into evidence a certified account

transcript showing that they timely filed a joint 2005 Federal

income tax return.   The elder Villasenors each claimed an

additional standard deduction for individuals aged 65 and older

and reported a home address in Chicago different from

petitioner’s apartment address.

     During 2005 petitioner’s girlfriend Alejandra Ramos, age 33,

resided with petitioner in his apartment.   Ms. Ramos did not

obtain an SSN until 2006, and she did not have a separate IRS

taxpayer identification number (TIN).

     Petitioner engaged a tax preparer, who timely and

electronically filed petitioner’s 2005 Federal income tax return.

Petitioner filed as a head of household, claimed his two sons as

dependents, and claimed a $2,000 child care credit.

     Respondent audited petitioner’s 2005 tax return.    Because

Ms. Ramirez was the custodial parent and had claimed the boys as

dependents on her tax return, respondent disallowed petitioner’s

dependency exemption deductions for his sons.   Consequently,

respondent also disallowed the child care credit and adjusted

petitioner’s filing status to single, which caused a statutory

reduction in petitioner’s standard deduction amount.    As a
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result, respondent issued a notice of deficiency dated December

18, 2006, determining a deficiency of $3,880.

     Petitioner timely petitioned this Court.    In the petition,

petitioner conceded that he was not entitled to dependency

exemption deductions for his two sons; however, he contended that

for 2005 he is entitled to head of household filing status and

three dependency exemption deductions because he supported his

two parents and Ms. Ramos and because all three of them resided

with him in his apartment in Chicago.

                            Discussion

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

notice of deficiency is presumed correct and the taxpayer bears

the burden of showing that the determination is in error.    Rule

142(a)(1); Welch v. Helvering, 290 U.S. 111, 115 (1933).     Under

section 7491(a), the burden may shift to the Commissioner

regarding factual matters if the taxpayer produces credible

evidence and meets the other requirements of the section.

Petitioner did not argue for a burden shift and he did not

fulfill the requirements of section 7491(a); therefore, the

burden remains with him.

     To qualify an individual as a dependent, the taxpayer needs

to establish that the individual is a qualifying child or a

qualifying relative.   See sec. 152(a).   As pertinent here, the

qualifying relative must satisfy each of three elements:
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Relationship, income, and support.       Sec. 152(d)(1).   The

relationship test requires that the dependent be either one of

many statutorily specified relatives, including parents, or an

unrelated individual who resided in the taxpayer’s residence for

the entire year.    Sec. 152(d)(2).    The income test requires that

the dependent’s gross income be less than the exemption amount,

which was $3,200 in 2005.    Sec. 152(d)(1)(B).     The support test

requires that the taxpayer provide more than one-half of the

dependent’s support.    Sec. 152(d)(1)(C).     An exception exists for

a multiple support arrangement, where the following conditions

must be met:   (1) No one person contributed over one-half of the

support, (2) two or more people in aggregate provided over one-

half of the support, (3) the taxpayer contributed more than 10

percent of the support, and (4) each person, except the taxpayer,

who provided over 10 percent of the support files a written

declaration that he or she will not claim the individual as a

dependent for the year at issue.      Sec. 152(d)(3).

     Dependents must satisfy three additional requirements.

First, they must not have filed a joint return for the year.

Sec. 152(b)(2).    Second, they must be citizens or nationals of

the United States, or residents of the United States, Mexico, or

Canada.   Sec. 152(b)(3).    Third, they must have SSNs or TINs and

the taxpayer must report those SSNs or TINs on his or her tax

return.   See sec. 151(e).
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     With respect to his parents, although they could be

qualifying relatives, Hipolito and Eulalia Villasenor filed a

joint tax return for 2005, which disqualifies them from being

dependents under the no joint return requirement of section

152(b)(2).   Also, their joint return showed a different Chicago

address than petitioner’s apartment, bringing into question the

residency and support requirements of sections 2(b)(1)(B) and

152(d)(1) and (2).   Further, petitioner provided no evidence that

his siblings declared a multiple support arrangement pursuant to

the requirements of section 152(d)(3).   Moreover, Hipolito

Villasenor does not qualify as a dependent because he had gross

income greater than the exemption amount, disqualifying him under

the income test of section 152(d)(1)(B).   Petitioner was unable

to establish that his parents did not file a joint return and

that his father had income less that the allowable limit.

     Regarding Ms. Ramos, at the outset we note that she did not

have an SSN or TIN until 2006, and this lack disqualifies her

from being a dependent in 2005 under the identification

requirements of section 151(e).   Additionally, although she might

have qualified as an unrelated individual under the qualifying

relative prong of section 152(a), petitioner provided no

competent evidence to support his testimony that she resided in

his apartment for the entire year, that her income was less than

$3,200, and that he provided more than one-half of her support.
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     The law is well settled that a taxpayer claiming a dependent

must affirmatively establish by competent evidence the amount of

support that the taxpayer provided and the amount of the alleged

dependent’s total support.   See Blanco v. Commissioner, 56 T.C.

512, 514-515 (1971); Vance v. Commissioner, 36 T.C. 547, 549

(1961); Cotton v. Commissioner, T.C. Memo. 2000-333; Turay v.

Commissioner, T.C. Memo. 1999-315, affd. per order (D.C. Cir.,

May 23, 2000); Keegan v. Commissioner, T.C. Memo. 1997-511; sec.

1.152-1(a)(2)(i), Income Tax Regs.     Since petitioner did not

provide competent evidence, he did not establish that either of

his parents or Ms. Ramos was a qualifying dependent in 2005.

     Moreover, petitioner did not call his parents or Ms. Ramos

to testify.   The failure to call witnesses who are in a position

to give favorable testimony leads to the conclusion that their

testimony, if given, would have been adverse.     Interstate

Circuit, Inc. v. United States, 306 U.S. 208, 226 (1939); Bresler

v. Commissioner, 65 T.C. 182, 188 (1975); Blum v. Commissioner,

59 T.C. 436, 440-441 (1972); Wichita Terminal Elevator Co. v.

Commissioner, 6 T.C. 1158, 1165 (1946), affd. 162 F.2d 513 (10th

Cir. 1947).

     Therefore, because of the failure to meet statutory

requirements, lack of competent evidence, and failure to call

favorable witnesses, we hold that petitioner’s parents and Ms.

Ramos do not qualify as dependents.
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     As pertinent here, to qualify for head of household filing

status, the taxpayer must pay more than one-half of the cost of

maintaining a home and have at least one qualifying dependent.

Sec. 2(b).   Because petitioner did not have a dependent in 2005

he is not entitled to head of household filing status.

     To reflect our disposition of the issues,


                                           Decision will be entered

                                       for respondent.
