                  T.C. Summary Opinion 2002-31



                     UNITED STATES TAX COURT



                 DAVID WASHINGTON, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 10926-00S.            Filed April 2, 2002.



     David Washington, pro se.

     Raymond M. Boulanger, for respondent.



     DINAN, 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
                                 - 2 -

effect for the years in issue, and all Rule references are to the

Tax Court Rules of Practice and Procedure.

     Respondent determined deficiencies in petitioner’s Federal

income taxes of $130 and $2,919 for the taxable years 1998 and

1999.    Petitioner resided in Rochester, New York, at the time his

petition was filed.

     The issues for decision are, with respect to taxable year

1999,1 whether petitioner is entitled to (1) three dependency

exemption deductions, (2) head of household filing status, and

(3) an earned income tax credit.

     Prior to 1999 and through the time of trial, petitioner was

married to Frankie Washington.    From some time prior to 1999,

until approximately September of that year, petitioner resided in

Buffalo, New York, with Diane Lipscomb and her three children:

Richard Rodriguez, Jivaughne Brown, and Savaughn Carnes.      After

September, petitioner resided in Rochester, New York.    Petitioner

received wages from Home Depot USA, Inc. and Try-It Distributing

Company, Inc. in the total amount of $7,120 in 1999.    Ms.

Lipscomb was unemployed at the time.

     Petitioner filed a Federal income tax return for taxable

year 1999 as a head of household.    He claimed three dependency

exemption deductions for Richard, Jivaughne, and Savaughn, and he

claimed an earned income credit with Richard and Savaughn as


     1
        Respondent concedes the deficiency for taxable year 1998.
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qualifying children, stating that they were foster children who

resided with him the entire year.

     In the statutory notice of deficiency, respondent changed

petitioner’s filing status to married filing separately,

disallowed each of the dependency exemption deductions, and

disallowed the full amount of the claimed earned income credit

for taxable year 1999.

     The first issue for decision is whether petitioner is

entitled to three dependency exemption deductions.

     A deduction generally is allowed under section 151(a) for

each dependent of a taxpayer.   Sec. 151(a), (c)(1).   Subject to

exceptions and limitations not applicable here, an individual is

a dependent of a taxpayer only if the taxpayer provides over half

of the individual’s support for the taxable year.    Sec. 152(a).

     During 1999, petitioner resided with Ms. Lipscomb and her

three children.   He earned $7,120 during that year, which is the

only potential source of support for the children reflected in

the record:   Petitioner testified that Ms. Lipscomb was not

receiving any public assistance while being unemployed and having

three children to raise.   Despite this testimony, we are

convinced that the children had sources of support other than

petitioner.   Petitioner did not directly address what other

sources were available to support the children, nor did he detail

any expenses he paid for the children.   See sec. 1.152-1(a),
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Income Tax Regs.   Petitioner has failed to show that he provided

over half of the children’s support during the year in issue.

See Rule 142(a); Welch v. Helvering, 290 U.S. 111 (1933).2     We

therefore sustain respondent’s disallowance of the dependency

exemption deductions.

     The second and third issues for decision are whether

petitioner is entitled to head of household filing status and

whether petitioner is entitled to an earned income credit.

     Generally, an individual who is married at the close of the

taxable year is not entitled to head of household filing status.

Sec. 2(b)(1).   Similarly, an individual who is married at the

close of the taxable year is not entitled to an earned income

credit if he does not file a joint income tax return with his

spouse for the taxable year.     Secs. 32(d), 7703(a).   An exception

to these general rules exists, but generally applies only if the

individual maintains a household which is the principal place of

abode of at least one child or stepchild for whom the individual

is entitled to a dependency exemption deduction.     Secs. 2(c),

32(d), 151(c)(3), 7703(b)(1).3


     2
      Sec. 7491(a) does not shift the burden of proof in this
case because petitioner has not presented credible evidence
concerning the support of the children and payment of their
expenses. Sec. 7491(a)(1).
     3
      Further exceptions apply, but petitioner does not assert--
and nothing in the record indicates--that they may be applicable.
                                                   (continued...)
                                 - 5 -

     Petitioner was married to Frankie Washington during the

entire taxable year 1999, but he did not file a joint income tax

return with her for that year.    We have held that petitioner is

not entitled to any dependency exemption deduction for 1999.

Consequently, petitioner is not entitled to head of household

filing status or to an earned income credit.       Secs. 2(b)(1),

32(d).

     Reviewed and adopted as the report of the Small Tax Case

Division.

     To reflect the foregoing,

                                         Decision will be entered for

                                 petitioner with respect to taxable

                                 year 1998 and for respondent with

                                 respect to taxable year 1999.




     3
      (...continued)
See secs. 2(b)(2), 7703(b)(1).
