                        T.C. Memo. 2000-143



                      UNITED STATES TAX COURT



                OSCAR HUGHES, JR., Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 4752-98.                      Filed April 20, 2000.



     Russell Brown, for petitioner.

     J. Craig Young, for respondent.



             MEMORANDUM FINDINGS OF FACT AND OPINION

     CARLUZZO, Special Trial Judge:    Respondent determined

deficiencies of $3,759 and $4,187 in petitioner's 1995 and 1996

Federal income taxes, respectively.    Unless otherwise indicated,

section references are to the Internal Revenue Code in effect for

the years in issue.   Rule references are to the Tax Court Rules

of Practice and Procedure.
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     The issues for decision for each year in issue are:

(1) Whether petitioner is entitled to claim dependency exemption

deductions for his three children; (2) whether petitioner

qualifies as a head of household; and (3) whether petitioner is

entitled to an earned income credit.

                         FINDINGS OF FACT

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

Petitioner was not married during, or as of the close of, either

year in issue.   He filed timely Federal income tax returns for

those years.   At the time the petition was filed, petitioner

resided in North Charleston, South Carolina.

     Petitioner and Delores Hamilton are the natural parents of

Oscar Hughes III, born November 15, 1985; Nestoshae Delores

Hughes, born November 20, 1986; and Antonio Hughes, born May 28,

1989 (the children).   Petitioner and Ms. Hamilton lived together

from 1980 until 1988 or 1989; they have never been married to

each other.

     On May 6, 1994, in response to a Motion for Temporary Relief

filed on her behalf in the appropriate local court, Ms. Hamilton

was awarded legal custody of the children, and petitioner was

ordered to pay child support in the amount of $397 per month,

which he did throughout the years in issue.    Petitioner was also

directed to “provide health and dental insurance coverage through
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his employer for the benefit of the * * * children”, which he

also did throughout the years in issue.

     Petitioner has been employed with the Charleston County

Public Works Department since 1981 and was so employed during the

years in issue.   His wages from his employment for those years

were $10,719 and $13,716, respectively.     Petitioner had no other

income during those years.   Ms. Hamilton was not employed and had

no income during 1995 or 1996.    In addition to the child support

that she received from petitioner, Ms. Hamilton collected various

forms of public assistance on behalf of herself and the children.

She did not file a Federal income tax return for either year.

     In 1995 and 1996, petitioner lived in a three-bedroom, one-

and-a-half-bathroom mobile home that he purchased sometime after

separating from Ms. Hamilton; she lived in a public housing

project.   Petitioner purchased a three-bedroom mobile home so

that his daughter could have her own bedroom, and his sons could

share a bedroom of their own when the children stayed with him.

     The children attended public schools during the years in

issue.   When school was in session, they lived with Ms. Hamilton

at the public housing project.    On most weekends during the

school year and throughout the summer recess, the children lived

with petitioner in his mobile home.      When the children lived with

him, petitioner incurred expenses for their food, clothing,

medical treatments and recreational activities.
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     Petitioner listed his filing status as a head of household

on his Federal income tax return for each year in issue.   He did

not elect to itemize deductions for either year.   Relevant for

our purposes, on each return he claimed a dependency exemption

deduction for each of his children and an earned income credit.

Petitioner computed the earned income credit claimed on each

return by treating two of his children as “qualifying” children.

     Delores Hamilton did not file a Federal income tax return

for any year in issue.   For each year she signed a Form 8332,

Release of Claim to Exemption for Child of Divorced or Separated

Parents.

     In the notice of deficiency for each year, respondent

changed petitioner’s filing status from head of household to

single and reduced the standard deduction accordingly.

Respondent also disallowed all of the claimed dependency

exemption deductions and the earned income credit.   No

explanations for the adjustments were included in the notices of

deficiency.

                              OPINION

I. Dependency Exemption Deductions

     Generally, section 151(c) allows a taxpayer a dependency

exemption deduction for each dependent as defined in section 152.

The term "dependent" includes certain individuals, such as a son

or daughter, "over half of whose support, for the calendar year
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* * * was received from the taxpayer (or is treated under

subsection * * * (e) as received from the taxpayer)".    Sec.

152(a).

     Section 152(e) provides special rules for a child of parents

who have not lived together for the last 6 months of the calendar

year.   In that situation, the statute provides that if a child

receives over one-half of his or her support from his or her

parents, the child shall be treated as receiving over one-half of

his or her support from the custodial parent, unless, as relevant

here, the “custodial parent signs a written declaration (in such

manner and form as the Secretary may by regulations prescribe)

that such custodial parent will not claim such child as a

dependent for any taxable year beginning in such calendar year,”

and “the noncustodial parent attaches such written declaration to

the noncustodial parent’s return for the taxable year beginning

during such calendar year.”   Sec. 152(e)(2)(A) and (B).   Under

those circumstances the child is treated as receiving over one-

half of his or her support from the noncustodial parent.

     Petitioner relies upon section 152(e) in support of his

position that he is entitled to the dependency exemption

deductions claimed on his returns.     Respondent argues, primarily,

that section 152(e) does not apply because it has not been

established that the children received over one-half of their

support from their parents.
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     For purposes of the dependency exemption deduction, support

is defined to include “food, shelter, clothing, medical and

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

Income Tax Regs.   Respondent points out that the record does not

reveal the exact amount of public assistance that Delores

Hamilton received on behalf of the children during the years in

issue.   Therefore, according to respondent, it cannot be

determined whether petitioner and Delores Hamilton provided over

one half of the children’s support.    We disagree.   Although the

record is not as complete as we would like, we are satisfied that

the amount of child support petitioner paid, plus the value of

the housing that he provided for the children, plus the cost of

the children’s medical insurance, plus the incidental expenses he

incurred for food, clothing, and entertainment while the children

resided at his house, plus whatever support the children received

from Delores Hamilton from nonpublic sources, amounted to more

than one-half of the children’s total support during the years in

issue.

     We have considered respondent’s other argument in support of

the disallowances of the dependency exemption deductions here in

dispute and find the argument to have no application under the

circumstances of this case.   Therefore, petitioner is entitled to

a dependency exemption deduction for each of his children for

each year in issue.
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II. Head-of-Household Filing Status

     In addition to satisfying other requirements not here in

dispute, in order to qualify as a head of household, a taxpayer

must maintain as his or her home a household that constitutes for

more than one-half of the taxable year the principal place of

abode, as a member of such household, of a child of the taxpayer.

See sec. 2(b).   Respondent argues that petitioner’s house was not

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

year in issue of any of petitioner’s children.    We agree.

Although petitioner enjoyed and exercised substantial visitation

rights, custody of the children during the years in issue was

with Delores Hamilton, and the children resided with her for

most of both years in issue.   Consequently, respondent’s

determinations that petitioner does not qualify as a head of

household for either year in issue are sustained.

III. Earned Income Credit

     Section 32(a) provides for an earned income credit in the

case of an eligible individual.   Because of his income for each

year in issue, petitioner is entitled to an earned income credit

only if he is entitled to treat any of the children as a

qualifying child, as defined in section 32(c)(3).    Among other

requirements, to be treated as a qualifying child, the child must

have the same principal place of abode as the taxpayer for more

than one-half of the taxable year.     We have previously found that
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this did not occur during either year in issue.       Consequently,

petitioner may not treat any of the children as a qualifying

child for either 1995 or 1996.    It follows that respondent’s

determinations disallowing the earned income credits claimed on

petitioner’s returns are sustained.

     To reflect the foregoing,



                                              Decision will be

                                         entered under Rule 155.
