                  T.C. Summary Opinion 2006-105



                     UNITED STATES TAX COURT



                 DARREN M. PARKER, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 2611-05S.             Filed July 13, 2006.


     Darren M. Parker, pro se.

     Vivian N. Rodriguez, 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 the petition was filed.   Unless otherwise

indicated, subsequent section references are to the Internal

Revenue Code as in effect for the year at 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 for 2003 a deficiency in petitioner’s

Federal income tax of $4,962.   The issues for decision are

whether petitioner:   (1) Is entitled to dependency exemption

deductions, (2) is entitled to an earned income credit, and (3)

is entitled to a child tax credit and an additional child tax

credit.

                            Background

     The stipulated facts and exhibits received into evidence are

incorporated herein by reference.    At the time the petition in

this case was filed, petitioner resided in Miami, Florida.

     Petitioner has one son, DP.    Petitioner also has one

“daughter”, EW, who is not biologically related to him, but he

has treated EW like his own daughter since her birth.

     During 2003, petitioner was employed as an insulator by

Fence Masters.   Petitioner filed a Form 1040A, U.S. Individual

Income Tax Return, for 2003, reporting wages of $13,871,

unemployment compensation of $1,791, and adjusted gross income of

$15,662.

     Respondent issued to petitioner a statutory notice of

deficiency determining petitioner was not entitled to dependency

exemption deductions, an earned income credit, a child tax credit

or an additional child tax credit, because he failed to

substantiate his claims.
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                             Discussion

     The Commissioner’s determinations are presumed correct, and

generally taxpayers bear the burden of proving otherwise.1       Rule

142(a)(1); Welch v. Helvering, 290 U.S. 111, 115 (1933).

Dependency Exemption

     Respondent disallowed the dependency exemption deductions

that petitioner claimed for DP and EW on his 2003 return.

     Section 151(c)(1) allows a taxpayer to claim an exemption

deduction for each qualifying dependent.      A child of the taxpayer

is considered a “dependent” so long as the child has not attained

the age of 19 at the close of the calendar year in which the

taxable year of the taxpayer begins, and more than half the

dependent’s support for the taxable year was received from the

taxpayer.    Secs. 151(c)(1)(B), 152(a)(1).   The age limit is

increased to 24 if the child was a student as defined by section

151(c)(4).    Sec. 151(c)(1)(B).

     Section 151(c)(1) also allows a taxpayer to claim an

exemption deduction for an individual whose gross income for the

calendar year in which the taxable year of the taxpayer begins is

less than the exemption amount, and more than half of whose




     1
      Petitioner has not raised the issue of sec. 7491(a), which
shifts the burden of proof to the Commissioner in certain
situations. This Court concludes that sec. 7491 does not apply
because petitioner has not produced any evidence that establishes
the preconditions for its application.
                                 - 4 -
support for the taxable year was received from the taxpayer.

Secs. 151(c)(1)(A), 152(a)(9).

     Petitioner has not offered any substantiation to show that

he provided more than half of DP’s and EW’s support during 2003.

Therefore, petitioner is not entitled to claim DP or EW as

dependents on his 2003 Federal income tax return.

     Accordingly, respondent’s determination is sustained.

Earned Income Credit

     Respondent determined that petitioner is not entitled to an

earned income credit for DP and EW, because he failed to

substantiate that DP and EW are “qualifying children”.

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

income credit against the individual’s income tax liability.

Section 32(a)(2) limits the credit allowed, and section 32(b)

prescribes different percentages and amounts used to calculate

the credit based on whether the eligible individual has no

qualifying children, one qualifying child, or two or more

qualifying children.

     To be eligible to claim an earned income credit with respect

to a qualifying child, a taxpayer must establish, inter alia,

that the child bears a relationship to the taxpayer prescribed by

section 32(c)(3)(B), that the child meets the age requirements of

section 32(c)(3)(C), and that the child shares the same principal

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

taxable year as prescribed by section 32(c)(3)(A)(ii).
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     Petitioner testified that, in 2003, DP and EW spent weekends

and summer vacation with him.    This amounts to less than one-half

of the taxable year.   Therefore, DP and EW fail to meet the

residence requirement under section 32(c)(3)(A)(ii) and are not

qualifying children for purposes of claiming the earned income

credit.

     Although petitioner is not eligible to claim an earned

income credit under section 32(c)(1)(A)(i) for a qualifying

child, he may be an “eligible individual” under section

32(c)(1)(A)(ii) even if he does not have any qualifying children.

For 2003, a taxpayer is eligible under this section only if his

adjusted gross income was less than $11,230.     Rev. Proc. 2002-70,

sec. 3.06, 2002-2 C.B. 845, 847.    Petitioner’s adjusted gross

income was $15,662.

     Accordingly, petitioner is not eligible for an earned income

credit.   Respondent’s determination on this issue is sustained.

Child Tax Credit and Additional Child Tax Credit

     For 2003, petitioner claimed a child tax credit of $176 and

an additional child tax credit of $337 with DP and EW as the

qualifying children.   Respondent determined that petitioner is

not entitled to either credit.

     Section 24(a) authorizes a child tax credit with respect to

each qualifying child of the taxpayer.     The term “qualifying

child” is defined in section 24(c).      A “qualifying child” means

an individual with respect to whom the taxpayer is allowed a
                               - 6 -

deduction under section 151, who has not attained the age of 17

as of the close of the taxable year and who bears a relationship

to the taxpayer as prescribed by section 32(c)(3)(B).   Sec.

24(c)(1).

     Since petitioner is not allowed a deduction with respect to

DP and EW as dependents under section 151, they are not

qualifying children.   In the absence of a qualifying child in

2003, petitioner is not entitled to claim a child tax credit.

     The child tax credit is a nonrefundable personal credit that

was added to the Internal Revenue Code by the Taxpayer Relief Act

of 1997, Pub. L. 105-34, sec. 101(a), 111 Stat. 796, with a

provision for a refundable credit, the “additional child tax

credit”, for families with three or more children.   For taxable

years beginning after December 31, 2000, the additional child tax

credit provision was amended to remove the restriction that only

families with three or more children are entitled to claim the

credit.   See sec. 24(d)(1); Economic Growth and Tax Relief

Reconciliation Act of 2001, Pub. L. 107-16, sec. 201(c)(1), 115

Stat. 46.

     In the absence of other nonrefundable personal credits, a

taxpayer is allowed to claim a child tax credit in an amount that

is the lesser of the full child tax credit or the taxpayer’s

Federal income tax liability for the taxable year.   See sec.

26(a).
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     If the child tax credit exceeds the taxpayer’s Federal

income tax liability for the taxable year, a portion of the child

tax credit may be refundable as an “additional child tax credit”

under section 24(d)(1).

     Petitioner is not entitled to claim an additional child tax

credit because he did not qualify for a child tax credit.

     Reviewed and adopted as the report of the Small Tax Case

Division.

     To reflect the foregoing,

                                              Decision will be entered

                                         for respondent.
