                 T.C. Summary Opinion 2004-138



                     UNITED STATES TAX COURT



                  ZOILO A. URENA, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 18427-03S.            Filed October 7, 2004.


     Zoilo A. Urena, pro se.

     Patricia Riegger, 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 year in issue, and all Rule references are to the

Tax Court Rules of Practice and Procedure.
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     Respondent determined a deficiency in petitioner’s Federal

income tax of $824 for the taxable year 2002.

     After concessions by both parties,1 the issues remaining for

decision are:    (1) Whether petitioner’s filing status for the

taxable year 2002 is married filing separately as determined in

the notice of deficiency, or single as claimed on petitioner’s

Form 1040, U.S. Individual Income Tax Return; and (2) whether

petitioner is entitled to an earned income tax credit in the

amount of $2,506 for the taxable year 2002.

     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

Brooklyn, New York, on the date the petition was filed in this

case.    Petitioner appeared in Court with an interpreter because

his understanding of the English language was limited.

Background

     In 1995, petitioner married Brenda Rodriguez (Ms. Rodriguez)

in New York, New York.    Petitioner and Ms. Rodriguez were

divorced in 1998.    Petitioner had no children from this marriage.

     Petitioner’s daughter, Gabriella Urena (Gabriella), was born

in 1996.    Maria Hernandez (Ms. Hernandez), petitioner’s friend,


     1
      Among the concessions, respondent conceded that petitioner
was entitled to claim Gabriella as a dependant for 2002 and that
he was entitled to a child tax credit for 2002 in the amount of
$208.
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is the mother of Gabriella.   Gabriella turned 6 years old during

the year in issue.   There is no support arrangement between

petitioner and Ms. Hernandez as to their daughter.    During 2002,

Gabriella attended first grade at Forest Elementary School in

Queens, New York.

     During 2002, petitioner earned income as an independent taxi

driver in the amount of $13,379.   Petitioner reported this income

on Schedule C, Profit or Loss From Business.

Discussion

     A taxpayer generally bears the burden of proving the

Commissioner’s determinations in a notice of deficiency to be in

error.   Rule 142(a).   In certain circumstances, however, if the

taxpayer introduces credible evidence with respect to any factual

issue relevant to ascertaining the proper tax liability, section

7491 places the burden of proof on the Commissioner.    Sec.

7491(a)(1); Rule 142(a)(2).   Credible evidence is “‘the quality

of evidence which, after critical analysis, * * * [a] court would

find sufficient * * * to base a decision on the issue if no

contrary evidence were submitted.’”     Higbee v. Commissioner, 116

T.C. 438, 442 (2001) (quoting H. Conf. Rept. 105-599, at 240-241

(1998), 1998-3 C.B. 747, 994-995).

Filing Status

     The first issue for decision is whether petitioner’s filing

status for the taxable year 2002 is married filing separately as
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determined in the notice of deficiency, or single as claimed on

petitioner’s Form 1040.2

     Petitioner testified that he obtained a divorce from his

first wife, Ms. Rodriguez, in 1998.   Petitioner also testified

that he never married Ms. Hernandez, Gabriella’s mother, and that

he was single during the year in issue.   This Court finds

petitioner’s testimony on this issue to be credible.   There is

nothing in the record to indicate that petitioner was married

during the year in issue.

     Respondent claims that his determination in the notice of

deficiency is based on petitioner’s 2001 tax return.   However, as

discussed above, such contention is unsupported by any evidence.

Neither petitioner’s 2001 nor his 2002 Federal income tax return

was offered into evidence to support respondent’s contention.

Upon the basis of the record, this Court finds that petitioner’s

credibility has not been impeached by any evidence offered by


     2
      In the notice of deficiency, respondent determined that
petitioner’s filing status was married filing separately and
computed the deficiency accordingly. Respondent contends that
petitioner did not dispute this adjustment in his petition to
this Court. Therefore, respondent contends that such adjustment
should be sustained.
     Although petitioner did not raise the issue in his petition
to this Court, we interpret his testimony as to call such issue
into question. The Court does not find that a consideration of
petitioner’s filing status as an issue in this case would result
in prejudice to respondent. Respondent, before trial, was aware
of petitioner’s contention as to his filing status in the taxable
year 2002. Accordingly, the issue of petitioner’s filing status
during the year in issue will be considered.
                                - 5 -

respondent.   Therefore, this Court finds that petitioner’s filing

status in 2002 was single as claimed by petitioner on Form 1040.

Earned Income Tax Credit

     The final issue for decision is whether petitioner is

entitled to an earned income tax credit in the amount of $2,506

for the taxable year 2002.

     The relevant parts of section 32 provide that an individual

is eligible for the earned income tax 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.    Sec. 32(c)(3).

     Respondent has conceded that Gabriella is petitioner’s

daughter, and that she is under the age of 19.    Therefore, two of

the three elements required have been satisfied if Gabriella is

to be considered a qualifying child for earned income tax credit

purposes.   However, respondent contends that petitioner has not

shown that Gabriella had the same principal place of abode as he

did for more than half of 2002 in order for him to claim an

earned income tax credit as a single person with a qualifying

child.

     Petitioner testified that during the year in issue Gabriella

lived with him and his brother, Robert Urena, at 1927 Bleeker
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Street, Queens, New York.   Petitioner never signed a lease for

his occupancy at this apartment.   Petitioner also did not

introduce any evidence such as utility bills for the above

residence.   Petitioner further explained that during 2002 Ms.

Hernandez lived at 233 South Fourth Street, Brooklyn, New York.

Petitioner testified that Ms. Hernandez would periodically visit

him and Gabriella at his residence on Bleeker Street.

     However, respondent called a paralegal specialist in the

Office of Chief Counsel to testify.     This witness testified that

on a prior occasion petitioner stated that he lived with Ms.

Hernandez, Gabriella, and Ms. Hernandez’s other child.

     Petitioner testified that he and Gabriella moved to 155

South Fourth Street, Apartment 15, Brooklyn, New York, later in

the year of 2002 or early 2003, but that he did not notify

Gabriella’s school of this move because he wanted to keep her in

the school to which she had grown accustomed.

     Petitioner testified that, during 2002, he drove Gabriella

to school at about 8 a.m. in the morning, then worked as an

independent taxi driver throughout the day.    Gabriella attended

an after-school program until 5:35 p.m., when she was then picked

up by petitioner.   Petitioner then drove Gabriella to her

maternal grandmother’s house, where Gabriella stayed while

petitioner went back to work.   At her grandmother’s house,

Gabriella had dinner and was taken care of by her grandmother.
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Petitioner testified that late at night after work he picked up

Gabriella, and she returned with him to his residence on Bleeker

Street.

     Petitioner testified that he was the custodial parent of

Gabriella.   However, at trial petitioner attempted to introduce a

Form 8332, Release of Claim to Exemption for Child of Divorced or

Separated Parents, which allegedly was completed by petitioner

and Ms. Hernandez.   In this form, petitioner and Ms. Hernandez

acknowledged that she was the custodial parent in 2002 but was

releasing her dependency exemption to petitioner.     The Form 8332

was not attached to petitioner’s Federal income tax return for

2002 and obviously was prepared in anticipation of trial.

     Upon the basis of the record and taking into account

inconsistencies in petitioner’s testimony, petitioner has not

persuaded the Court that Gabriella lived with him at the same

principal place of abode for more than one-half of the taxable

year.   Therefore, we find that petitioner is not entitled to an

earned income tax credit for the tax year 2002.     Respondent’s

disallowance of an earned income tax credit is sustained.

     Reviewed and adopted as the report of the Small Tax Case

Division.

                                       Decision will be entered

                               under Rule 155.
