                  T.C. Summary Opinion 2002-80



                     UNITED STATES TAX COURT



                  MOHAMED BARRIE, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 546-01S.                Filed July 2, 2002.



     Mohamed Barrie, pro se.

     Jeffrey E. Gold, 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 year in issue, and all Rule

references are to the Tax Court Rules of Practice and Procedure.
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     Respondent determined a deficiency in petitioner’s income

tax of $4,569 for 1999.   The issues for decision are:

(1) Whether petitioner is entitled to the two claimed dependency

exemption deductions; (2) whether petitioner is entitled to

claimed head-of-household filing status; and (3) whether

petitioner is entitled to a claimed earned income credit (EIC).

     Petitioner resided in Silver Spring, Maryland, at the time

he filed his petition.    Some of the facts have been stipulated,

and are so found.

Background

     Petitioner came to the United States from Africa in 1997.

During 1999, the year in issue, petitioner lived in Silver

Spring, Maryland, in a two-bedroom apartment with a roommate,

Mohamed Conteh (Mr. Conteh).   Petitioner worked as a security

guard.

     The wife of petitioner’s cousin, Hadiatou Diallo (Mrs.

Diallo), and her daughter Oumou Diallo1 (Oumou) purportedly moved

into the apartment with petitioner and Mr. Conteh shortly after

Oumou’s birth on February 9, 1999.      Oumou’s birth certificate

indicates the residence of Mrs. Diallo at the time of Oumou’s

birth as Atlanta, Georgia.



     1
        Although the name of Mrs. Diallo’s daughter is referred
to as Umou throughout the record, the birth certificate reflects
the name as Oumou. Accordingly, we refer to Mrs. Diallo’s
daughter as Oumou.
                                - 3 -

     Petitioner’s sister Fatima Jalloh (Mrs. Jalloh) gave birth

to a daughter Mariam Jalloh (Mariam) on February 12, 1999.    Mrs.

Jalloh and Mariam also purportedly lived in the apartment with

petitioner, Mr. Conteh, Mrs. Diallo, and Oumou after Mariam’s

birth through the remainder of 1999.    Mariam’s birth certificate

reflects that she was born in the State of Maryland.

     A health insurance patient authorization form dated

February 19, 1999, issued by a medical center for care provided

to Mariam, indicates that the subscriber of Mariam’s health

insurance was Mrs. Jalloh.    The form indicates that Mariam’s home

address was in Lanham, Maryland.    This address is the same as

Mrs. Jalloh’s home address indicated in a letter signed by her

and dated April 19, 2000.    A receipt for medical treatment for

Mariam dated July 2, 1999, indicates that Mariam was covered by

health insurance.

     Petitioner married Fatima Barrie (Mrs. Barrie) in 1995.

During 1999 Mrs. Barrie and petitioner did not live together in

the same household.   Although they were not living together,

petitioner and Mrs. Barrie did not file for separation or

divorce.

     On Form 1040, U.S. Individual Income Tax Return, for 1999

petitioner claimed Oumou and Mariam as dependents (foster

children).   Petitioner claimed head-of-household filing status

and an EIC of $3,613.

     Respondent determined in a notice of deficiency that
                               - 4 -

petitioner was not entitled to:   (1) The claimed dependency

exemption deduction; (2) head-of-household filing status; and (3)

the claimed EIC.

     Petitioner conceded during trial that he was married

throughout the entire year at issue and neither separated nor

divorced.

Discussion

     The first issue for our consideration is whether petitioner

is entitled to the claimed dependency exemption deduction for

Oumou and Mariam as foster children.2   A taxpayer is allowed a

deduction for a dependent for whom the taxpayer has provided over

one-half of her support.   Secs. 151(c)(1) and 152(a).    A

dependent includes a daughter of a sister of the taxpayer under

section 152(a)(6) and an individual who, for the taxable year,

has as her principal place of abode the home of the taxpayer and

is a member of the taxpayer’s household under section 152(a)(9).

If the requirements of section 152(a)(9) and section 1.152-1,

Income Tax Regs., are satisfied with respect to a foster child,

that child shall be treated as a child of the taxpayer by blood.

Sec. 152(b)(2); sec. 1.152-2(c)(4), Income Tax Regs.     For


     2
        Petitioner bears the burden of proof on all issues in
this case. Rule 142(a)(1). Sec. 7491 does not apply to shift
the burden of proof to respondent because petitioner has neither
alleged that sec. 7491 is applicable nor established that he
complied with the requirements of sec. 7491(a)(2)(A) and (B) to
substantiate items, maintain required records, and fully
cooperate with respondent’s reasonable requests.
                               - 5 -

purposes of section 152(a)(9), it is not necessary that the

dependent be related to the taxpayer but it is necessary that the

taxpayer both maintain and occupy the household.    Sec. 1.152-

1(b), 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, 56

T.C. 512, 514 (1971); 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 Oumou and Mariam not only lived in

his apartment from shortly after the time that each was born

through the end of 1999, but also that he paid for all of their

food, clothing, and medical needs, and that he paid a major

portion of the rent for the apartment.    The record, however, does

not support petitioner’s testimony, and we need not accept it.

Tokarski v. Commissioner, 87 T.C. 74, 77 (1986).

     We are not convinced that either Oumou’s or Mariam’s

principal place of abode during 1999 was petitioner’s apartment.

There is no documentary evidence supporting petitioner’s position
                                 - 6 -

that Oumou lived with him.   Further, previously discussed

documents reflect an address for Mariam that is different from

petitioner’s.   This address is the same address where Mrs. Jalloh

and Mariam lived during the year 2000, as reflected in a letter

from Mrs. Jalloh dated April 19, 2000.   We find that petitioner’s

apartment was not Mariam’s principal place of abode during 1999.

     Even if petitioner’s home were the principal place of abode

for either Oumou or Mariam, there is an absence of evidence in

the record indicating that petitioner provided any support for

either Oumou or Mariam.   Rather, the documents in the record

support the conclusion that someone other than petitioner

provided Mariam’s support.   Neither the health insurance patient

authorization form dated February 19, 1999, nor the receipt for a

diagnosis dated July 2, 1999, indicates that petitioner paid any

amount for Mariam’s health insurance or care.   A letter dated

April 19, 2000, and signed by Mrs. Jalloh provides that

petitioner “has been a great contributor toward my daughter”,

Mariam, but this letter is not credible supporting evidence.

     Petitioner explained that he had a duty to care for his

relatives who fled their home country because of fighting.   We

are not convinced that petitioner provided over one-half of the

support for Oumou or Mariam.   Accordingly, the claimed dependency

exemption deduction is denied.

     The next issue for decision is whether petitioner is
                                - 7 -

entitled to the claimed head-of-household 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 a household if, and only if, he is

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

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

household which constitutes for more than one-half of the taxable

year the principal place of abode of a dependent of the taxpayer

(if not a child or grandchild of the taxpayer), if the taxpayer

is entitled to a deduction for the dependent under section 151.

Sec. 2(b)(1)(A).   A taxpayer shall be considered as not married

if he is legally separated from his spouse under a decree of

divorce or of separate maintenance, or if at any time during the

taxable year his spouse is a nonresident alien.     Sec. 2(b)(2)(B)

and (C).3   An individual maintains a household only if he

furnished over half of the costs of maintaining the household

during the taxable year.   Sec. 2(b)(1); sec. 1.2-2(b)(1), (d),

Income Tax Regs.

     Petitioner conceded that he was married during 1999 and that

he was not legally separated from Mrs. Barrie under a decree of

divorce or of separate maintenance.     There are no facts in the

record that indicate that Mrs. Barrie was a nonresident alien.



     3
        As discussed below, an individual is also not treated as
married if he is so treated under sec. 7703(b). Sec. 32(d).
                                    - 8 -

In addition, as we concluded above, petitioner did not maintain

as his home a household which constituted for more than one-half

of 1999 the principal place of abode of a dependent under section

151.       Accordingly, we conclude that petitioner is not entitled to

the claimed head-of-household filing status.4

       The next issue is whether petitioner is entitled to the

claimed EIC of $3,613.       Under section 32(d), in the case of an

individual who is married (within the meaning of section 7703),

the individual may be entitled to an EIC under section 32 only if

a joint return is filed for the taxable year under section 6013.

       The determination of whether an individual is married is

made at the close of the taxable year.          Sec. 7703(a)(1).   An

individual legally separated from his spouse under a decree of

divorce or of separate maintenance shall not be considered as

married.       Sec. 7703(a)(2).   An individual who is living apart

from his spouse but not legally separated under a decree of

divorce or separate maintenance shall be considered as married.

Sec. 1.7703-1(a), Income Tax Regs.          Accordingly, under section

7703(a) petitioner is considered married.

       Alternatively, section 7703(b) provides that a taxpayer who

is married under section 7703(a) and who files a separate return,


       4
        We note that respondent disallowed the head-of-household
filing status in the notice of deficiency and treated petitioner
as single. Respondent does not seek to claim an increased
deficiency which might result from a change in filing status to
married filing separately.
                                 - 9 -

maintains as his home a household which constitutes for more than

one-half of the taxable year the principal place of abode of a

child (under section 151(c)(3)) with respect to whom the taxpayer

is entitled to a deduction under section 151, furnishes over one-

half of the cost of maintaining such household during the taxable

year, and whose spouse is not a member of such household during

the last 6 months of the taxable year shall not be considered as

married.    See also sec. 1.7703-1(b)(1), Income Tax Regs.     Because

we have concluded above that petitioner is not entitled to a

deduction under section 151, section 7703(b) is not applicable to

petitioner, and he shall be considered as married during 1999.

     Since petitioner was married within the meaning of section

7703 during 1999 and he did not file a joint return for the

taxable year under section 6013, he is not entitled to the

claimed EIC under section 32(d).

     Reviewed and adopted as the report of the Small Tax Case

Division.

     To reflect the foregoing,

                                         Decision will be entered

                                 for respondent.
