                   T.C. Summary Opinion 2008-125



                      UNITED STATES TAX COURT



                   KANOKWAN SMITH, Petitioner v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 10405-07S.             Filed September 18, 2008.



     Kanokwan Smith, pro se.

     Nina S. Kang, for respondent.



     DEAN, Special Trial Judge:   This case was heard pursuant to

the provisions of section 7463 of the Internal Revenue Code in

effect when 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 the year in issue,
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and all Rule references are to the Tax Court Rules of Practice

and Procedure.

     Respondent denied petitioner’s dependency exemption

deductions, additional child tax credits, child or dependent care

credits, and head of household filing status, determining an

$8,134 deficiency in petitioner’s 2005 Federal income tax.1       The

issues remaining for decision are whether petitioner is entitled

to dependency exemption deductions and child tax credits for her

partner’s (Mr. Little) three minor children.2

                             Background

     Some of the facts have been stipulated and are so found.

The stipulation of facts and the exhibits received into evidence

are incorporated herein by reference.     When the petition was

filed, petitioner resided in California.

     Petitioner and Mr. Little have lived together since November

2001.    During 2005 they cohabited in Alaska.   Petitioner and Mr.

Little married in a religious ceremony, but they did not obtain a

marriage license.    Petitioner and Mr. Little held themselves out

as husband and wife, and “Everybody knew * * * [that they had


     1
      Respondent concedes that petitioner’s two biological
children are petitioner’s qualifying children and dependents.

     Petitioner’s entitlement to head of household filing status
and child or dependent care credits was not argued by the
parties. Respondent’s concessions resolve these issues as to
petitioner’s dependents. See secs. 2(b), 21(a).
     2
        The children were 10, 8, and 7 years old in 2005.
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married, religiously]”.    Mr. Little’s children have no contact

with their biological mother and regard petitioner as their

mother.    Petitioner provided the sole support for their family

during 2005 while Mr. Little (and his three children) attended a

religious and language school in Yemen.

       Petitioner filed her 2005 Form 1040, U.S. Individual Income

Tax Return, claiming head of household status, dependency

exemption deductions, child tax credits, additional child tax

credits, and child or dependent care credits.

                             Discussion

I.    Burden of Proof

       The Commissioner’s determinations in a notice of deficiency

are presumed correct, and the taxpayer has the burden to prove

that the determinations are in error.      Rule 142(a); Welch v.

Helvering, 290 U.S. 111, 115 (1933).      But the burden of proof on

factual issues that affect a taxpayer’s tax liability may be

shifted to the Commissioner if the taxpayer introduces credible

evidence with respect to the issue.      See sec. 7491(a)(1).   There

is no dispute as to any factual issue.      Accordingly, this case is

decided by the application of law to the undisputed facts, and

section 7491(a) is inapplicable.

II.    Dependency Exemption Deductions

       Generally, taxpayers may claim dependency exemption

deductions for their dependents (as defined in section 152).       See
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sec. 151(c).    The term “dependent” includes a “qualifying child”

or “qualifying relative.”   Sec. 152(a).   A qualifying child is a

child who bears a certain relationship to the taxpayer.    Sec.

152(c)(1)(A).    The relationship exists if the claimed dependent

is the taxpayer’s:   (1) Child or descendant of such child; or (2)

brother, sister, stepbrother, stepsister, or a descendant of any

such relative.   Sec. 152(c)(2).   The term “child” means an

individual who is the taxpayer’s son, daughter, stepson,

stepdaughter, an adopted individual, or an “eligible foster

child”.   Sec. 152(f)(1).

     Petitioner was not related to Mr. Little’s children by

blood, she had not legally adopted the children, and they were

not her eligible foster children in 2005.    Thus, petitioner’s

entitlement to the dependency exemption deductions hinges on

whether the children are petitioner’s stepsons or stepdaughters.

See sec. 152(c)(1)(A), (2)(A), (f)(1).

     Petitioner and Mr. Little argue that petitioner is entitled

to dependency exemption deductions and child tax credits for Mr.

Little’s children because they cohabited in a common law marriage

and she provided the family’s sole support during 2005.    Mr.

Little testified:    “we got married in our mass, in our religious

organization, so after being together so many years, it was

recognized as such * * * she had no problem with rights over the

kids in Alaska.”
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     Generally, a person’s marital status, as determined by State

law, “is recognized in the administration of the Federal income

tax laws.”   Rev. Rul. 58-66, 1958-1 C.B. 60; see also von Tersch

v. Commissioner, 47 T.C. 415, 419 (1967); cf. Peveler v.

Commissioner, T.C. Memo. 1979-460; Ross v. Commissioner, T.C.

Memo. 1972-122.   Alaska Stat. sec. 25.05.011(a) (2006) provides:

“Marriage is a civil contract * * * that requires both a license

and solemnization.”   See also Alaska Stat. secs. 25.05.011(b) (“A

person may not be joined in marriage in this state until a

license has been obtained”), 25.05.061 (“A marriage * * * is void

unless a license has first been obtained”); Harrelson v.

Harrelson, 932 P.2d 247, 250 (Alaska 1997) (“Alaska does not

recognize common law marriages.”).

     Because Alaska law does not recognize common law marriages,

it follows that petitioner and Mr. Little were not married for

Federal income tax purposes and his children were not

petitioner’s stepsons or stepdaughters.   See von Tersch v.

Commissioner, supra at 421-422.   Therefore, Mr. Little’s children

were not petitioner’s qualifying children in 2005.

     In pertinent part, section 152(d)(1)(D) defines a qualifying

relative as an individual who is not a qualifying child of any

other taxpayer for the taxable year.
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       Mr. Little’s children are his qualifying children.       See sec.

152(c)(1)(A), (2)(A).       Thus, Mr. Little’s children are not

petitioner’s qualifying relatives.         See sec. 152(d)(1)(D).

       On the basis of the foregoing, petitioner is not entitled to

dependency exemption deductions for Mr. Little’s children for

2005, and respondent’s determination is sustained.

III.    Child Tax Credits

       Generally, taxpayers may claim child tax credits for each

qualifying child (as defined in section 152(c)) under age 17.

See sec. 24(a), (c)(1).

       Because Mr. Little’s children are not petitioner’s

qualifying children, she is not entitled to child tax credits for

those children, and respondent’s determination is sustained.

       To reflect the foregoing,


                                           Decision will be entered under

                                   Rule 155.
