                  T.C. Summary Opinion 2004-84



                     UNITED STATES TAX COURT



                  DERRICK ELKINS, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 6262-03S.              Filed June 24, 2004.


     Derrick Elkins, pro se.

     Amy Dyar Seals, for respondent.



     PANUTHOS, Chief 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, and all Rule

references are to the Tax Court Rules of Practice and Procedure.
                               - 2 -

     Respondent determined deficiencies in petitioner’s Federal

income taxes of $5,801 for the 1999 taxable year and $4,039 for

the 2000 taxable year.

     After concessions by respondent,1 the issues for decision

are: (1) Whether petitioner is entitled to dependency exemption

deductions for 1999 and 2000; (2) whether petitioner is entitled

to head-of-household filing status for 1999 and 2000;2 (3)

whether petitioner is entitled to child tax credits for 1999 and

2000; (4) whether petitioner is entitled to a credit for child

and dependent care expenses of $400 for 1999; and (5) whether

petitioner is entitled to charitable contribution deductions of

$3,654 for 1999 and $5,002 for 2000.3

     Some of the facts have been stipulated, and they are so

found.   The stipulation of facts and the attached exhibits are

incorporated herein by this reference.   At the time the petition

was filed, petitioner resided in Charlotte, North Carolina.



     1
        Respondent concedes that, of the $7,447 claimed by
petitioner for the 1999 taxable year, petitioner is entitled to a
charitable contribution deduction of $3,793. Respondent further
concedes that petitioner is entitled to a charitable contribution
deduction of $200 for the 2000 taxable year.
     2
        Respondent determined that petitioner was entitled to a
filing status of married filing separately for the 1999 and 2000
taxable years.
     3
        Respondent determined that petitioner was entitled to the
standard deduction for 1999 and 2000, since after respondent’s
disallowance of charitable contribution deductions in the notice
of deficiency, the standard deduction was greater than the
claimed itemized deductions for the corresponding taxable year.
                                - 3 -

     Petitioner filed Federal income tax returns for taxable

years 1999 and 2000.   In each return, petitioner filed as a “head

of household” and claimed dependency exemption deductions.    For

1999, petitioner claimed dependency exemption deductions for

Jaleshia Stackhouse (Jaleshia), Caletta Pressley (Ms. Pressley),

and Tyra Postles (Tyra).4   Jaleshia is petitioner’s daughter, who

was 9 years old in 1999 and who lived with petitioner during the

years in issue.   Petitioner described Ms. Pressley as “a friend”,

who was 32 years old in 1999 and who, along with Tyra, moved in

with petitioner for about 9 months, starting after February 1999.

Ms. Pressley is the biological mother of Tyra, who was born

February 15, 1999.

     For 2000, petitioner claimed dependency exemption deductions

for Sabrina Stackhouse (Ms. Stackhouse) and Jaleshia.   Ms.

Stackhouse, who was 31 years old in 2000, is the biological

mother of Jaleshia.    She moved in with petitioner sometime after

March 2000.   Petitioner testified that he was not married to Ms.

Stackhouse during the relevant taxable years.




     4
        According to respondent, no one else, other than
petitioner, claimed the dependency exemption deductions with
respect to Jaleisha, Ms. Pressley, or Tyra for the years in
issue. Moreover, none of them filed returns for the years in
issue.
                                 - 4 -

       Petitioner also claimed the following deductions and

credits:

       Deduction or Credit                      1999      2000

       Child tax credit                       $1,000      $500
       Credit for child and
            dependent care expenses             480        ---
       Charitable contribution deduction      7,447      5,202

1.   Burden of Proof

       A taxpayer is generally required to substantiate deductions

by keeping books and records sufficient to establish the amount

of the deductions.     Sec. 6001; sec. 1.6001-1(a), Income Tax Regs.

Deductions are a matter of legislative grace, and generally the

taxpayer bears the burden of proving entitlement to any deduction

claimed.    Rule 142(a); INDOPCO, Inc. v. Commissioner, 503 U.S.

79, 84 (1992).    The burden of proof has not shifted to respondent

pursuant to section 7491(a).    While examination of the tax

returns in issue commenced after July 22, 1998, petitioner has

not satisfied any of the criteria of section 7491(a)(2)(A) and

(B).    Indeed, we found petitioner’s testimony to be questionable

or inconsistent at times.

2.   Dependency Exemption Deductions

       The first issue for decision is whether petitioner is

entitled to the claimed dependency exemption deductions for 1999

and 2000.    Section 151(c) allows a taxpayer to deduct an

exemption amount for each dependent, as defined in section 152.

A dependent is defined as an individual, who is either a U.S.
                                - 5 -

citizen, national, or resident of the United States, over half of

whose support is received from the taxpayer.      See sec. 152(a) and

(b)(3).   In order to qualify as a dependent, an individual must

also be related to the taxpayer in one of the ways enumerated in

section 152(a)(1) through (8), or be an unrelated individual who

lives with the taxpayer and is a member of the taxpayer’s

household throughout the entire taxable year of the taxpayer.

See sec. 152(a)(9); Trowbridge v. Commissioner, 268 F.2d 208 (9th

Cir. 1959), affg. 30 T.C. 879 (1958); McMillan v. Commissioner,

31 T.C. 1143, 1145-1146 (1959); Turay v. Commissioner, T.C. Memo.

1999-315, affd. per order (D.C. Cir., May 23, 2000); sec. 1.152-

1(b), Income Tax Regs.

     In the present case, petitioner claimed dependency exemption

deductions with respect to four individuals during the years in

issue.    Of these four, only Jaleshia was related to petitioner as

his daughter.   See sec. 152(a)(1).     For the remaining three

individuals who were not related to petitioner, Ms. Pressley and

Tyra did not live with petitioner during the entire taxable year

of 1999, and Ms. Stackhouse did not live with petitioner during

the entire taxable year of 2000.   Accordingly, they do not

qualify as dependents within the meaning of section 152(a)(9).

     Section 152(e)(1) provides a special support test in which

the custodial parent is entitled to the dependency exemption

deduction “if a child (as defined in section 151(c)(3)) receives
                                - 6 -

over half of his support during the calendar year from his

parents * * * who live apart at all times during the last 6

months of the calendar year”.    Sec. 152(e)(1)(A)(iii).   There is

no requirement in the statute that parents have married each

other before the special support test of section 152(e)(1) can

apply.   King v. Commissioner, 121 T.C. 245, 250 (2003).    In 1999,

petitioner had custody of his daughter Jaleisha, and petitioner

and Ms. Stackhouse lived apart at all times.    Petitioner thus

satisfies the special support test for Jaleisha for 1999, and he

is entitled to the dependency exemption deduction for Jaleisha

for that taxable year.    For 2000, the special support test under

section 152(e)(1)(A)(iii) does not apply because petitioner and

Ms. Stackhouse lived together during the last 6 months of the

calendar year.   Petitioner did not provide any information as to

the total amount of support provided to Jaleisha from all sources

for 2000.   The total amount of support for each of the claimed

dependents furnished by all sources during the year in issue must

be established by competent evidence.    Blanco v. Commissioner, 56

T.C. 512, 514 (1971).    If the total amount of support is not

shown and cannot be reasonably inferred from the competent

evidence available, it is impossible to conclude that petitioner

furnished more than one-half.    See id. at 514-515.

     We sustain respondent’s determination that petitioner is not

entitled to dependency exemption deductions for Ms. Pressley,
                               - 7 -

Tyra, and Ms. Stackhouse for the 1999 and 2000 taxable years and

for Jaleisha for the 2000 taxable year.   However, we conclude

that, under the special support test of section

152(e)(1)(A)(iii), petitioner is entitled to the dependency

exemption deduction for Jaleisha for the 1999 taxable year.

3.   Filing Status

      To qualify as a head of household, a taxpayer must satisfy

the requirements of section 2(b).   Under section 2(b), a taxpayer

shall be considered a head of household if he or she is not

married at the close of the taxable year, is not a surviving

spouse, and, among other choices, maintains as his or her home a

household which constitutes for more than half of such taxable

year the principal place of abode, as a member of such household,

of either an unmarried daughter of the taxpayer or any other

person who is a dependent of the taxpayer if the taxpayer is

entitled to a deduction for the taxable year for such person

under section 151.   Sec. 2(b)(1)(A); sec. 1.2-2(b)(3)(ii),

(c)(1), Income Tax Regs.   A taxpayer shall be considered as

maintaining a household only if he or she pays more than one-half

of the cost thereof for the taxable year.   Sec. 1.2-2(d), Income

Tax Regs.

      In the present case, respondent determined that petitioner

was not entitled to head-of-household filing status for 1999 and

2000.   We have sustained respondent’s determination that Ms.
                               - 8 -

Pressley, Tyra, and Ms. Stackhouse were not petitioner’s

dependents.   Moreover, although Jaleisha lived with petitioner

for more than one-half of the year during 1999 and 2000,

petitioner has not provided any evidence that he paid more than

one-half of the cost of maintaining a household during the

relevant taxable years.5   Accordingly, petitioner is not entitled

to head-of-household filing status for 1999 and 2000, and to that

extent, we sustain respondent’s determination.

      Respondent also determined that petitioner is entitled to a

filing status of married filing separately for the taxable years

in issue.   However, respondent’s determination is inconsistent

with petitioner’s testimony that he was not married to either Ms.

Stackhouse or Ms. Pressley.   And while the record seems to

indicate that petitioner was single during the 1999 and 2000

taxable years, respondent did not argue at the time of trial that

petitioner’s filing status was married filing separately.     We

therefore conclude that petitioner is entitled to the filing

status of single for the years in issue.

4.   Child Tax Credit

      Section 24(a) provides for a “credit against the tax * * *

for the taxable year with respect to each qualifying child of the


      5
        Other individuals who lived with petitioner, such as Ms.
Pressley and Ms. Stackhouse, could have paid more than one-half
of the cost of maintaining the household during the years in
issue.
                                - 9 -

taxpayer”.    The term “qualifying child” means any individual if

three tests are satisfied.    Sec. 24(c)(1).

      In the present case, Tyra is not a qualifying child because

petitioner is not allowed a deduction under section 151 with

respect to her for 1999.    See sec. 24(c)(1)(A).   With respect to

Jaleisha, however, we have concluded that petitioner is entitled

to a dependency exemption deduction for her for 1999, but not for

2000.   Moreover, Jaleisha satisfies the relationship test and age

test for 1999 and 2000.    See sec. 24(c)(1)(B) and (C).

Accordingly, she is a qualifying child for the 1999 taxable year,

and petitioner is entitled to the child tax credit for Jaleisha

for 1999.    To that extent, we do not sustain respondent’s

determination on this issue.

5.   Credit for Child and Dependent Care Expenses

      Section 21(a)(1) provides for a credit against tax in the

case of “an individual who maintains a household which includes

as a member one or more qualifying individuals” and in an amount

equal to the applicable percentage of the “employment-related

expenses” paid by such individual during the taxable year.     The

term “qualifying individual” means, among other things, a

dependent of the taxpayer who is under the age of 13 and with

respect to whom the taxpayer is entitled to a deduction under

section 151(c).    Sec. 21(b)(1)(A).    The term “employment-related
                                - 10 -

expenses” includes expenses for certain dependent care centers.

Sec. 21(b)(2)(A), (C), (D).

      In the present case, petitioner claimed the credit under

section 21(a) with respect to Jaleshia for 1999.     We have

concluded that petitioner was entitled to dependency exemption

deduction for Jaleisha for that taxable year, and thus, Jaleshia

is a qualifying individual.     However, petitioner could not and

did not substantiate that he incurred any employment-related

expenses within the meaning of section 21(b)(2), and evidence in

the record suggests that the dependent care center was no longer

in operation during 1999.     Accordingly, petitioner is not

entitled to the credit for child and dependent care expenses for

1999.     We sustain respondent’s determination on this issue.

6.   Charitable Contribution Deductions

        Section 170(a)(1) allows as a deduction a charitable

contribution payment of which is made within the taxable year.       A

charitable contribution includes a contribution or gift to or for

the use of a corporation, trust, community chest, fund, or

foundation organized and operated exclusively for religious,

charitable, scientific, literary, or educational purposes.       Sec.

170(c)(2)(B).

        If a taxpayer makes a charitable contribution in cash or by

check, the taxpayer shall maintain for each contribution either a

canceled check, a receipt or letter from the donee charitable

organization, or other reliable written records showing the name
                               - 11 -

of the donee and the date and amount of the contribution.

Cavalaris v. Commissioner, T.C. Memo. 1996-308; sec. 1.170A-

13(a)(1), Income Tax Regs.   If the contribution is made in

property other than money, the taxpayer must also maintain a

receipt or letter from the donee showing the name of the donee,

the date and location of the contribution, and a description of

the property.   Sec. 1.170A-13(b)(1), Income Tax Regs.     In the

case where a receipt would be impractical to obtain, the taxpayer

shall maintain reliable written records with respect to each item

of donated property.   Id.   A deduction for a contribution of $250

or more will not be allowed unless the taxpayer substantiates the

contribution with a contemporaneous written acknowledgment from

the donee organization.   Sec. 1.170A-13(f)(1), Income Tax Regs.

     Petitioner presented two receipts from the Salvation Army,

one for 1999 and another for 2000.      While neither of these

receipts lists the value of the donated items, respondent

concedes that petitioner is entitled to a charitable contribution

of $200 for each receipt.6   Petitioner, however, testified that

he donated more items than those listed on such receipts.


     6
        As we indicated earlier, respondent concedes that
petitioner is entitled to charitable contribution deductions of
$3,793 for the 1999 taxable year and $200 for the 2000 taxable
year. The $3,793 concession for the 1999 taxable year is based
upon (1) one of the two receipts from the Salvation Army, (2) a
$68 donation to the Army/Navy Store, and (3) a $3,525 donation of
an automobile to the National Kidney Foundation. The $200
concession for the 2000 taxable year is based upon the other
receipt from the Salvation Army.
                               - 12 -

Petitioner also testified that he contributed money to his

church, but did not provide any details to support these

contributions.    We are not required to accept petitioner’s self-

serving testimony.    Patterson v. Commissioner, T.C. Memo. 1996-

146.    Accordingly, respondent is sustained on this issue to the

extent not conceded by him.

       Reviewed and adopted as the report of the Small Tax Case

Division.

       To reflect the foregoing and respondent’s concessions,


                                           Decision will be entered

                                     under Rule 155.
