                         T.C. Memo. 2010-33



                       UNITED STATES TAX COURT



                AHMAD MISBAH SHEIKH, Petitioner v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 2969-08.                Filed February 23, 2010.



     Ahmad Misbah Sheikh, pro se.

     Steven G. Cappellino and Mohammad S. Sohail (student),

for respondent.



              MEMORANDUM FINDINGS OF FACT AND OPINION


     VASQUEZ, Judge:    Respondent determined a $4,635 deficiency

in petitioner’s Federal income tax for 2005.     The issues

remaining1 for decision are whether petitioner is entitled to

     1
         Petitioner concedes that he is not entitled to file as a
                                                    (continued...)
                                  - 2 -

claim dependency exemption deductions and child tax credits for

his two children, M.M.S.2 and M.A.S.

         Unless otherwise indicated, all 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.

                            FINDINGS OF FACT

     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

Michigan when the petition was filed.

     Petitioner was married to Mymoona Fathima Syed (Ms. Syed)

until March 17, 2005.     They had two children, M.M.S. and M.A.S,

who were born in 2000 and 2002, respectively.     In September 2003

Ms. Syed and the children moved into the home of Ms. Syed’s

parents, Mr. Haffeez Abdul and Ms. Shahnaz Syed (maternal

grandparents), in New York.     Mr. Abdul’s employer provided the

home rent free.

     On March 17, 2005, petitioner and Ms. Syed signed a consent

judgment of divorce (consent judgment) in the Circuit Court,



     1
     (...continued)
head of household and that he is not entitled to a standard
deduction of $7,300.
         2
        It is the policy of the Court to identify minors only by
their initials. See Rule 27(a)(3).
                               - 3 -

Oakland County, Michigan, Family Division.    The consent judgment

provided that custody of M.M.S. and M.A.S. would be decided at a

later date by a New York court and ordered petitioner to pay

child support of $1,043 per month to Ms. Syed.   The consent

judgment did not address whether petitioner or Ms. Syed was

entitled to claim the dependency exemption deductions or child

tax credits for M.M.S. and M.A.S. for Federal income tax

purposes.

     On December 16, 2005, the New York Family Court, Erie

County, entered a decision and order awarding custody of M.M.S.

and M.A.S. to Ms. Syed.   The decision and order did not address

whether petitioner or Ms. Syed was entitled to claim the

dependency exemption deductions or child tax credits for M.M.S.

and M.A.S. for Federal income tax purposes.

     Petitioner paid child support of $12,530.62 for M.M.S. and

M.A.S. to Ms. Syed in 2005.   He also paid $5,129 for medical

insurance and $674.16 for dental insurance for himself and the

children.   Petitioner did not know at the time of trial the

amount of the insurance premiums attributable to coverage for the

children.   On brief petitioner claims that medical insurance was

$3,420 and dental insurance was $448.10 for the children.

     M.M.S. and M.A.S. lived with Ms. Syed and their maternal

grandparents in New York in 2005.   The maternal grandparents

reported wage income of $11,600 on their 2005 Form 1040A, U.S.
                                 - 4 -

Individual Income Tax Return.    They also claimed dependency

exemption deductions, child tax credits, and the earned income

credit for M.M.S. and M.A.S.

     Petitioner reported wage income of $49,600 on his 2005 Form

1040A.   He also claimed dependency exemption deductions and child

tax credits for M.M.S. and M.A.S.    Respondent rejected

petitioner’s electronically filed Form 1040A because the maternal

grandparents claimed M.M.S. and M.A.S. as dependents on their

2005 Form 1040A.   Petitioner, thereafter, filed a paper Form

1040A claiming the dependency exemption deductions and child tax

credits for M.M.S. and M.A.S.    He did not attach Form 8332,

Release of Claim to Exemption for Child of Divorced or Separated

Parents, or its equivalent to his paper Form 1040A.

     Petitioner is unaware of the amount of support the maternal

grandparents provided for M.M.S. or M.A.S. in 2005.    He also is

unaware of the financial resources the maternal grandparents had

in 2005 to provide support for M.M.S. or M.A.S.    He testified,

however, that the maternal grandparents “have so much excess of

money * * * they don’t have any problem”.    He also testified that

in 2005 M.M.S.’ and M.A.S.’ housing, school, and transportation

were free.

                                OPINION

     Petitioner has neither claimed nor shown that he satisfied

the requirements of section 7491(a) to shift the burden of proof
                                 - 5 -

to respondent.    Accordingly, petitioner bears the burden of

proof.   See Rule 142(a).

I.   Dependency Exemption Deductions

     Section 151(a) and (c) allows taxpayers an annual exemption

deduction for each “dependent” as defined in section 152.       A

dependent is either a qualifying child or a qualifying relative.

Sec. 152(a).    The requirement is disjunctive, and, accordingly,

satisfaction of either the qualifying child requirement or the

qualifying relative requirement allows the individual to be

claimed as a dependent.     A qualifying child must meet the

following four statutory requirements:

     • Relationship.--The individual (dependent) is the

     taxpayer’s child, a descendant of the taxpayer’s child,

     the taxpayer’s brother, sister, stepbrother, or

     stepsister or a descendant of any such relative.    Sec.

     152(c)(1)(A), (2).

     • Residence.--The individual has the same principal

     place of abode as the taxpayer for more than one-half

     of such taxable year.    Sec. 152(c)(1)(B).

     • Age.--The individual must not have attained the age

     of 19 or must be a student who has not attained the age

     of 24.    Sec. 152(c)(1)(C), (3)(A).
                               - 6 -

     • Support.--The individual has not provided over

     one-half of the individual’s own support.3   Sec.

     152(c)(1)(D).

     The parties stipulated that M.M.S. and M.A.S. resided in New

York with Ms. Syed and their maternal grandparents in 2005.

Thus, M.M.S. and M.A.S. did not have the same principal place of

abode as petitioner for more than one-half of the taxable year.

See sec. 152(c)(1)(B).   Accordingly, neither M.M.S. nor M.A.S. is

petitioner’s qualifying child under section 152(c).

     A qualifying relative must meet the following four statutory

requirements:

     • Relationship.--The individual (dependent) is the

     taxpayer’s child, a descendant of the taxpayer’s child,

     the taxpayer’s brother, sister, stepbrother, or

     stepsister; the taxpayer’s father or mother or an

     ancestor of either, the taxpayer’s stepfather or

     stepmother, a son or daughter of the taxpayer’s brother

     or sister, a brother or sister of the taxpayer’s father

     or mother, a son-in-law, daughter-in-law,

     father-in-law, mother-in-law, brother-in-law, or



     3
        A taxpayer must establish the total cost of support
expended on behalf of a dependent from all sources. Sec.
1.152-1(a)(2)(i), Income Tax Regs. The term “support” includes
items such as food, shelter, clothing, medical and dental care,
education, and the like and certain Government benefits. Sec.
1.152-1(a)(2)(i) and (ii), Income Tax Regs.
                               - 7 -

     sister-in-law; or an individual (other than an

     individual who at any time during the taxable year was

     the taxpayer’s spouse determined without regard to

     section 7703) who has the same principal place of abode

     as the taxpayer and is a member of the taxpayer’s

     household during the taxable year.     Sec. 152(d)(1)(A),

     (2).

     • Gross Income.--The individual’s gross income for the

     taxable year is less than the exemption amount ($3,200

     for 2005).   Sec. 152(d)(1)(B).

     • Support.--The taxpayer provides over one-half of the

     individual’s support for the taxable year.     Sec.

     152(d)(1)(C).

     • Not a Qualifying Child.--The individual is not a

     qualifying child of the taxpayer or of any other

     taxpayer for the taxable year.     Sec. 152(d)(1)(D).

     Petitioner did not substantiate the amount of M.M.S.’ or

M.A.S.’ support from all sources in 2005.     See supra note 3.

Thus, petitioner did not establish that he provided over one-half

of either child’s support for 2005.     See sec. 152(d)(1)(C).    In

addition, petitioner has not established that neither M.M.S. nor

M.A.S. is a qualifying child of any other taxpayer for 2005

(e.g., the maternal grandparents).     See sec. 152(d)(1)(D).
                                 - 8 -

Accordingly, neither M.M.S. nor M.A.S. is petitioner’s qualifying

relative under section 152(d).

     Section 152(e)(1), however, provides a special rule whereby

a noncustodial parent may be entitled to claim a dependency

exemption deduction for a child notwithstanding the residency

requirement of section 152(c)(1)(B), the support requirement of

section 152(d)(1)(C), or the so called tie-breaking rule of

section 152(c)(4).   A child will be treated as the noncustodial

parent’s qualifying child or qualifying relative if the following

five statutory requirements are met.

     • Support.--The child receives over one-half of child’s

     support during the calendar year from the child’s

     parents.   Sec. 152(e)(1)(A).

     • Parents.--The parents are divorced or legally

     separated under a decree of divorce or separate

     maintenance, are separated under a written separation

     agreement, or live apart at all times during the last 6

     months of the calendar year.    Id.

     • Custody.--The child is in the custody of one or both

     parents for more than one-half of the calendar year.

     Sec. 152(e)(1)(B).

     • Custodial Parent Releases Claim to Exemption.--The

     custodial parent signs a written declaration (in such

     manner and form as the Secretary may prescribe) that
                                  - 9 -

      the custodial parent will not claim the child as a

      dependent for the taxable year.     Sec. 152(e)(2)(A).

      • Noncustodial Parent Attaches Release to Return.--The

      noncustodial parent attaches the written declaration to

      the noncustodial parent’s return for the taxable year.

      Sec. 152(e)(2)(B).

      Petitioner did not substantiate the amount of M.M.S.’ or

M.A.S.’ support from all sources in 2005.      Thus, petitioner did

not establish that he and Ms. Syed provided over one-half of

their support for 2005.     See sec. 152(e)(1)(A); see also Hopkins

v. Commissioner, 55 T.C. 538, 541 (1970) (taxpayer failed to show

that children received over one-half of their support from their

divorced parents; thus, section 152(e) did not apply); Frazier v.

Commissioner, T.C. Memo. 1973-21.      Petitioner also did not attach

a Form 8332 or its equivalent to his return.      See sec. 152(e)(2).

Accordingly, neither M.M.S. nor M.A.S. is treated as petitioner’s

qualifying child or qualifying relative under section 152(e)(2).

II.   Child Tax Credits

      A taxpayer may claim a child tax credit for “each qualifying

child”.   Sec. 24(a).     A qualifying child for purposes of section

24 is a “qualifying child” as defined in section 152(c) who has

not attained the age of 17.      Sec. 24(c)(1).

      Because we have concluded that neither M.M.S. nor M.A.S. is

petitioner’s qualifying child nor treated as such under section
                             - 10 -

152(e), he is not entitled to child tax credits for them.

Respondent’s determination is sustained.

     To reflect the foregoing,


                                           Decision will be entered

                                   for respondent.
