                  T.C. Summary Opinion 2011-116



                      UNITED STATES TAX COURT



                 SHEREAL WALLACE, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 11411-10S.             Filed September 29, 2011.



     Shereal Wallace, pro se.

     Christina L. Lewerenz, for respondent.



     WELLS, Judge:   This case was heard pursuant to the

provisions of section 7463 of the Internal Revenue Code in effect

when the petition was filed.1   Pursuant to section 7463(b), the

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

this opinion shall not be treated as precedent for any other


     1
      Unless otherwise indicated, section references are to the
Internal Revenue Code of 1986, as amended, and Rule references
are to the Tax Court Rules of Practice and Procedure.
                                - 2 -

case.    Respondent determined a $3,137 deficiency in petitioner’s

2007 Federal income tax.    After concessions by respondent, the

issues we must decide are whether petitioner is entitled to claim

dependency exemption deductions for Daquetta Davis (Ms. Davis)

and M.D. and whether petitioner is entitled to the child tax

credit for M.D.2

                             Background

     Some of the facts and certain exhibits have been stipulated.

The parties’ stipulations of facts are incorporated in this

opinion by reference and are found accordingly.    At the time he

filed his petition, petitioner was a resident of Missouri.

     Petitioner timely filed his tax return for 2007, claiming

dependency exemption deductions for Ms. Davis and M.D. and a

child tax credit for M.D.    Ms. Davis is petitioner’s niece, and

M.D. is Ms. Davis’ daughter.    At the close of 2007, Ms. Davis was

21 years old and M.D. was 2 years old.    Ms. Davis is not married,

and petitioner is not sure who is the father of M.D.    Petitioner

took Ms. Davis and M.D. into his home during January 2007 because

they were homeless, and they resided in a spare room in his home

until October 2007.   Ms. Davis received her certificate of high

school equivalence on September 4, 2007.    During the period when




     2
      The Court refers to minor children by their initials.    See
Rule 27(a)(3).
                               - 3 -

Ms. Davis and M.D. resided with petitioner, Ms. Davis did not

have a job and received no other income.

     Respondent issued a notice of deficiency to petitioner, and

petitioner timely filed his petition with this Court.

                            Discussion

     As a general rule, the Commissioner’s determinations set

forth in a notice of deficiency are presumed correct, and the

taxpayer bears the burden of proving otherwise.    Rule 142(a);

Welch v. Helvering, 290 U.S. 111, 115 (1933).     If the taxpayer

satisfies certain substantiation and record keeping requirements,

the burden of proof regarding factual matters may shift to the

Commissioner.   See sec. 7491(a).   Petitioner has not contended,

and we do not find, that the burden of proof should shift to

respondent.   See sec. 7491(a)(2)(A) and (B).

     A taxpayer may claim a dependency exemption deduction with

respect to an individual who is either a “qualifying child” or a

“qualifying relative”.   Secs. 151(c), 152(a).   To be a taxpayer’s

“qualifying child”, an individual must:    (A) Bear a qualifying

relationship to the taxpayer; (B) have the same principal place

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

year; (C) meet certain age requirements; and (D) not have

provided more than half of his or her own support for the year.

Sec. 152(c)(1).
                                  - 4 -

     Additionally, if two or more taxpayers may and do claim the

same qualifying child, section 152(c)(4) provides that the child

shall be treated as the qualifying child of the parent.3

However, because Ms. Davis did not claim M.D. as a qualifying

child, section 152(c)(4) does not prevent petitioner from

claiming M.D. as a qualifying child.

     An individual bears a qualifying relationship to the

taxpayer if that individual is “a brother, sister, stepbrother,

or stepsister of the taxpayer or a descendant of any such

relative.”   Sec. 152(c)(2)(B).    As petitioner’s niece and

grandniece, Ms. Davis and M.D. meet the relationship requirement.

Ms. Davis and M.D. lived with petitioner in a room in his home

from January through October 2007, more than half of the year.

     To meet the age requirement, an individual must be younger

than 19 or be a student younger than 24.     Sec. 152(c)(3)(A).   For

purposes of section 152, “student” is defined as an individual

who during each of 5 months during the year is a full-time

student at an educational institution that normally maintains a

regular faculty, curriculum, and enrolled body of students in


     3
      For tax years beginning after Dec. 31, 2008, the statute
has been amended to provide that if an individual may be claimed
as a qualifying child by two or more taxpayers for a tax year
beginning during the same calendar year, such individual shall be
treated as the qualifying child of the taxpayer who is the parent
of the individual. The amendment removed the requirement that
the child “may be and is claimed” by two or more taxpayers.
Fostering Connections to Success and Increasing Adoptions Act of
2008, Pub. L. 110-351, sec. 501(c)(2)(B)(i), 122 Stat. 3980.
                               - 5 -

attendance at the place where educational activities are

conducted.   Secs. 152(f)(2), 170(b)(1)(A)(ii).    M.D. was 2 at the

end of the calendar year and therefore meets the age requirement.

Ms. Davis was 21 at the end of the calendar year.     Although

petitioner offered evidence that Ms. Davis obtained her

certificate of high school equivalency during September 2007, he

did not offer any evidence that she was a full-time student at a

qualified educational institution during at least 5 months of the

calendar year.   Accordingly, petitioner failed to offer evidence

that Ms. Davis met the age requirement under section 152, and he

is therefore not entitled to claim Ms. Davis as a qualifying

child.

     Ms. Davis earned no income during the approximately 10

months she and M.D. lived with petitioner, and petitioner

provided for all of M.D.’s needs during that period.

Accordingly, petitioner provided more than half of M.D.’s support

for the year.

     Consequently, M.D. meets the statutory definition of

“qualifying child”, and we therefore hold that petitioner was

entitled to a dependency exemption deduction for M.D.

     An individual who is not a qualifying child may still, under

certain conditions, qualify as a dependent if he or she is a

qualifying relative.   Sec. 152(a).    Pursuant to section

152(d)(1), the term “qualifying relative” means an individual:
                               - 6 -

(A) who bears a qualifying relationship to the taxpayer; (B)

whose gross income is less than the exemption amount defined in

section 151(d); (C) for whom the taxpayer has provided more than

one-half of the individual’s support; and (D) who is not a

qualifying child of the taxpayer or any other taxpayer.    For

2007, the exemption amount pursuant to section 151(d) was $3,400.

Rev. Proc. 2006-53, sec. 3.18, 2006-2 C.B. 996, 1001.

     Petitioner offered no evidence regarding the amount of Ms.

Davis’ gross income during the period when she was not living in

his home.   Because the burden of proof is on petitioner and he

offered no evidence, we conclude that he is not entitled to claim

Ms. Davis as a qualifying relative under section 152(d).

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

qualifying child of the taxpayer.   The term “qualifying child”

means a qualifying child of the taxpayer as defined in section

152(c) who has not attained age 17.    Sec. 24(c).   We have already

held that M.D. is a qualifying child, and she was under the age

of 17.   Accordingly, we hold that petitioner is entitled to the

child tax credit for M.D.

     In reaching these holdings, we have considered all the

parties’ arguments, and, to the extent not addressed herein, we

conclude that they are moot, irrelevant, or without merit.
                         - 7 -

To reflect the foregoing and respondent’s concessions,


                                      Decision will be entered

                                 under Rule 155.
