                  T.C. Summary Opinion 2001-11



                     UNITED STATES TAX COURT



            THADDEUS D. HOLLINGSWORTH, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 8957-99S.                  Filed February 7, 2001.


     Thaddeus D. Hollingsworth, pro se.

     Robert S. Scarbrough, 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.   The decision to be

entered is not reviewable by any other court, and this opinion

should not be cited as authority.   Unless otherwise indicated,

subsequent section references are to the Internal Revenue Code in

effect for the years in issue.
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     Respondent determined deficiencies in petitioner’s Federal

income taxes for 1995, 1996, and 1997 in the amounts of $3,608,

$2,846, and $3,505, respectively.     The issues for decision are:

(1) Whether petitioner is entitled to dependency exemption

deductions for his two sons; (2) whether petitioner is entitled

to head of household status; and (3) whether petitioner is

entitled to earned income credits.

     Some of the facts in this case have been stipulated and are

so found.     The stipulation of facts and the exhibits received

into evidence at trial are incorporated herein by this reference.

At the time the petition was filed, petitioner lived in Seattle,

Washington.

     Petitioner has two minor sons: Thaddeus S. Hollingsworth,

born on November 24, 1982, and Malcolm R. Hollingsworth, born on

July 10, 1984 (collectively the children).     Petitioner and Celia

Smith (Ms. Smith), the children’s mother, were never married.

They agreed, however, that Ms. Smith would have legal custody of

the children.     They further agreed that the children would stay

with petitioner on the weekends and during the summer months.

Under the supervision of the Department of Child Services,

petitioner is required to pay child support of approximately $400

per month.1


     1
          The record shows that petitioner has been in arrears in
all years in issue.
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     The children lived with Ms. Smith in a 1-bedroom apartment

in 1995 and then a 2-bedroom apartment with Ms. Smith and her

mother in 1996 and 1997.    Although Ms. Smith had full custody of

the children, there is scant evidence in the record as to her

employment history during the years in issue.    Ms. Smith received

public benefits during some months throughout the years in issue.

     In 1995, petitioner worked as a janitor and part-time bus

driver.    In 1996 and 1997, petitioner worked full-time as a

janitor for Dependable Building Maintenance.    Petitioner lived in

the basement of his brother’s 4-bedroom home during 1995.     During

the weekends and summer months, the children also lived with

petitioner in his brother’s home.    Petitioner paid $300 per month

in rent.    In 1996 and 1997, petitioner moved into a 2-bedroom

apartment near Ms. Smith.    Petitioner paid for the children’s

meals, school clothing, and some additional child support.      When

the children stayed with him, he would diminish his own expenses

in order to care for the children’s needs.

     In petitioner’s respective 1995, 1996, and 1997 Federal

income tax returns, he claimed dependency exemptions for his

minor children, head of household filing status, and earned

income credits.    For each year, respondent disallowed the

dependency exemption because petitioner failed to establish that

he was entitled to the exemption.    As a result of the

disallowance, respondent further determined that petitioner’s
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filing status was single, not head of household, and also

disallowed the earned income credit.

Dependency Exemption

     Section 151(c) allows a taxpayer to deduct an annual

exemption amount for each dependent of the taxpayer.   A

“dependent” is defined in section 152(a) as an individual “over

half of whose support, for the calendar year in which the taxable

year of the taxpayer begins, was received from the taxpayer (or

is treated under subsection (c) or (e) as received from the

taxpayer)”.   In order to prevail, petitioner must show by

competent evidence: (1) The total support provided for each

child, and (2) that he provided more than half of such total

support.    The amount of total support may be reasonably inferred

from competent evidence.   See Stafford v. Commissioner, 46 T.C.

515, 518 (1966).   However, where the amount of total support of a

child during the taxable year is not shown, and cannot be

reasonably inferred from competent evidence, then it is not

possible to conclude that the taxpayer has contributed more than

one-half.   See Blanco v. Commissioner, 56 T.C. 512, 515 (1971);

Fitzner v. Commissioner, 31 T.C. 1252, 1255 (1959).

     Although we find petitioner’s testimony credible as to the

amount he contributed to the children’s support, the record based

solely on his contributions is incomplete.   Petitioner was unable

to reconstruct the dollar amount of the total support for the
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children for the years in issue.   We recognize that it is

reasonable to infer Ms. Smith may have contributed a modicum

amount to the support of her children.   However, Ms. Smith was

employed during some months of the years in issue, and, without

evidence of her income or additional assistance she may have

received from her mother, we are unable to determine the total

support available to the children by all able parties.    Neither

Ms. Smith nor her mother testified at trial.

     By failing to establish the total amount of support provided

to petitioner’s children from all sources, including Ms. Smith’s

public assistance, we are unable to conclude that petitioner

provided more than one-half of the children’s total support

during the years in issue.   Therefore, we hold that petitioner is

not entitled to section 151 dependency exemption deductions for

the 1995, 1996, and 1997 tax years.    Respondent is sustained on

this issue.

Head of Household Status

     According to the relevant part of section 2(b), an

individual shall be considered a head of household if such

individual (1) is not married at the close of the taxable year

and (2) maintains as his home a household which constitutes for

more than one-half of the taxable year the principal place of

abode for a son or daughter.

     Petitioner was not married to Ms. Smith at the close of
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1995, 1996, or 1997.   Therefore, petitioner satisfies the first

requirement of section 2(b).   However, petitioner fails to

establish the second requirement because he did not maintain his

home as the principal place of abode for his children for more

than one-half of any of the years in issue.   Petitioner testified

that the children lived with him on the weekends and during the

summer months, which does not meet the time period requirement of

section 2(b).

     Therefore, petitioner is not entitled to file his 1995,

1996, and 1997 Federal income tax returns as head of household.

Respondent is sustained on this issue.

Earned Income Credit

     The relevant parts of section 32 provide that an individual

is eligible for the earned income credit if the individual has a

qualifying child.   A “qualifying child” is a son or daughter of

the taxpayer who has not attained the age of 19 at the end of the

taxable year and shares the same principal place of abode in the

United States with the taxpayer for more than one-half of the

taxable year.    Neither child was 19 years old at the end of 1995,

1996, or 1997.   But because petitioner’s children resided with

him for less than one-half of the 1995, 1996, and 1997 taxable

years, petitioner fails to meet the time period requirement of

section 32.   Respondent is sustained on this issue.
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    Reviewed and adopted as the report of the Small Tax Case

Division.

                                          Decision will be entered

                                     for respondent.
