                  T.C. Summary Opinion 2004-92



                     UNITED STATES TAX COURT



                  BILLIE BOOKER, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 2813-01S.                Filed July 19, 2004.


     Billie Booker, pro se.

     Ronald T. Jordan, for respondent.



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

the provisions of section 7463 of the Internal Revenue Code in

effect at the time that the petition was filed.    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.

The decision to be entered is not reviewable by any other court,

and this opinion should not be cited as authority.
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     Respondent determined a deficiency in petitioner's Federal

income tax of $4,086 for 1997.

     The issues for decision are:    (1) Whether petitioner is

entitled to dependency exemption deductions; (2) whether

petitioner is entitled to earned income credits; and (3) whether

petitioner is entitled to head of household filing status.

                            Background

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

The stipulations of fact and exhibits received into evidence are

incorporated herein by reference.    At the time the petition in

this case was filed, petitioner resided in Fort Wayne, Indiana.

     Petitioner's cousin, Ms. Angie D. Booker (Ms. Booker), is

the mother of Contrille Booker (Contrille).    Petitioner's twin

sister, Ms. Beverly Booker-Smith (Ms. Booker-Smith), is the

mother of Brandon Booker (Brandon).

     Petitioner timely filed her electronic 1997 Federal income

tax return as head of household and reported income of $15,019.

Petitioner claimed dependency exemption deductions for Contrille

and Brandon as well as earned income credits relating to the

children.   The return states that the children are petitioner's

sons.

     Petitioner provided written statements from Ms. Booker and

Ms. Booker-Smith stating that they each had given petitioner
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permission to care for their children and to claim those children

as dependents.

      Respondent issued a notice of deficiency determining that

petitioner is not entitled to claim head of household filing

status, dependency exemption deductions, or earned income credits

for 1997 because she failed to substantiate her claims.

                            Discussion

      Deductions are a matter of legislative grace, and taxpayers

must maintain adequate records to substantiate the amount of any

deductions or credits claimed.    Sec. 6001; INDOPCO, Inc. v.

Commissioner, 503 U.S. 79, 84 (1992); sec. 1.6001-1(a), Income

Tax Regs.   Taxpayers generally bear the burden of proving that

the Commissioner’s determinations are incorrect.   Rule 142(a);

Welch v. Helvering, 290 U.S. 111, 115 (1933).   Section 7491 does

not apply because petitioner has failed to substantiate her

deductions and provide credible evidence.

1.   Dependency Exemption Deductions

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

amount for each "dependent" as defined in section 152.    As

relevant here, section 152(a) defines a dependent to include a

son or daughter of a sibling of the taxpayer or an individual,

other than a spouse, whose principal place of abode is the home

of the taxpayer and who is a member of the taxpayer's household

"over half of whose support, for the calendar year in which the
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taxable year of the taxpayer begins, was received from the

taxpayer (or is treated under subsection (c) or (e) as received

from the taxpayer)".

     To qualify for a dependency exemption deduction, a taxpayer

must establish the total support cost expended on behalf of a

claimed dependent from all sources for the year and demonstrate

that she provided over half of this amount.   See Archer v.

Commissioner, 73 T.C. 963, 967 (1980); Blanco v. Commissioner, 56

T.C. 512, 514-515 (1971); sec. 1.152-1(a)(2)(i), Income Tax Regs.

     The term "support" includes food, shelter, clothing, medical

and dental care, education, and the like.   Sec. 1.152-1(a)(2)(i),

Income Tax Regs.   The total amount of support for each claimed

dependent furnished by all sources during the year in issue must

be established by competent evidence.   Blanco v. Commissioner,

supra at 514; sec. 1.152-1(a)(1), Income Tax Regs.   The amount of

support that the claimed dependent received from the taxpayer is

compared to the total amount of support the claimed dependent

received from all sources.   Sec. 1.152-1(a)(2)(i), Income Tax

Regs.

     Petitioner testified that Contrille and Brandon lived with

her for the entire year and that she took care of the household

and paid all the bills.   Petitioner did not provide any evidence

at all regarding any amounts she may have expended to care for

Contrille or Brandon.
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      The Court sustains respondent's determination that

petitioner is not entitled to dependency exemption deductions for

Contrille and Brandon in 1997.

2.   Head of Household Filing Status

      Section 1(b) imposes a special tax rate on individuals

filing as head of household.   As relevant herein, section 2(b)

defines a "head of household" as an unmarried individual who

maintains as her home a household that for more than one-half of

the taxable year constitutes the principal place of abode of a

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

entitled to a deduction for the taxable year for that dependent

under section 151.

      Respondent determined that petitioner is not entitled to

section 151 dependency exemption deductions for Contrille and

Brandon in 1997.   The Court has sustained respondent's

determination regarding the section 151 deductions.   That holding

is dispositive of this issue, and, as a result, the Court

sustains respondent's determination that petitioner is not

entitled to claim head of household filing status for 1997.

3.   Earned Income Credit

      Section 32(a)(1) allows an eligible individual an earned

income credit against the individual's income tax liability.     An

eligible individual is any individual who either:   (1) Has a

"qualifying child" as defined by section 32(c)(3)(A), or (2) has
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no qualifying child and meets the requirements of section

32(c)(1)(A)(ii).     Merriweather v. Commissioner, T.C. Memo. 2002-

226; Briggsdaniels v. Commissioner, T.C. Memo. 2001-321.

     A qualifying child is one who satisfies a relationship test,

a residency test, an age test, and an identification requirement.

See sec. 32(c)(3).    Under the relationship test, the qualifying

child must be a son or daughter, a stepson or stepdaughter, or a

foster child of the taxpayer.    See sec. 32(c)(3)(A).   For the

taxable year in issue, Contrille and Brandon were not the

children or stepchildren of petitioner, and thus, would need to

be "eligible foster children" to be petitioner's qualifying

children.   The term "eligible foster child" means an individual

who the taxpayer cares for as her own child and who has the same

principal place of abode as the taxpayer for the taxpayer's

entire taxable year.    Sec. 32(c)(3)(B)(iii).

     Neither the Code nor the regulations define how a taxpayer

cares for an individual as his or her own child.    This Court has

indicated that merely contributing financially to the support of

an individual does not rise to the level of caring for the

individual as one's own child.    See Mares v. Commissioner, T.C.

Memo. 2001-216; Smith v. Commissioner, T.C. Memo. 1997-544.

There is not sufficient evidence in the record indicating that

petitioner cared for Contrille and Brandon as her own children.

There were other members of petitioner's household, including
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Brandon's own mother, Mrs. Booker-Smith, and petitioner's mother,

who were available to care for him.    See Perez v. Commissioner,

T.C. Memo. 1998-442.

     Petitioner has also failed to offer evidence sufficient to

show that her residence was the principal place of abode for the

children.   She did not have legal custody of the children, nor

did she offer any documentation corroborating that they lived in

her household during any part of the year in issue.    Accordingly,

the Court finds that the children were not the foster children of

petitioner.   Because petitioner has failed to meet the

relationship test under section 32, it is not necessary to

analyze the remaining factors of section 32.

     A taxpayer with no qualifying children may be eligible for

the earned income credit subject to, among other things, the

phaseout limitations of section 32(a)(2).     Merriweather v.

Commissioner, supra; Briggsdaniels v. Commissioner, supra.      For

1997, the earned income credit is completely phased out under

section 32(a) for a taxpayer with no qualifying children if the

taxpayer's earned income and adjusted gross income is over

$9,770.   See sec. 32(a) and (b); see also Rev. Proc. 96-59,

1996-2 C.B. 392, 394-395.   Petitioner's earned income and

adjusted gross income for 1997 was $15,019.    Therefore,
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petitioner is not entitled to claim an earned income credit for

1997.

     Reviewed and adopted as the report of the Small Tax Case

Division.

                                      Decision will be entered

                              for respondent.
