                     T.C. Summary Opinion 2009-140



                        UNITED STATES TAX COURT



                   VERNYCE K. MOSLEY, Petitioner v.
             COMMISSIONER OF INTERNAL REVENUE, Respondent



        Docket No. 5338-08S.               Filed September 8, 2009.



        Vernyce K. Mosley, pro se.

        Marilyn S. Ames, for respondent.



     DEAN, Special Trial Judge:      This case was heard pursuant to

the provisions of section 7463 of the Internal Revenue Code in

effect when the petition was filed.     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

case.     Unless otherwise indicated, subsequent section references

are to the Internal Revenue Code (Code) in effect for the year in
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issue, and all Rule references are to the Tax Court Rules of

Practice and Procedure.

     Respondent determined for 2006 a deficiency in petitioner’s

Federal income tax of $3,074.

     The issues for decision are:   (1) Whether petitioner is

entitled to file as married filing separately after filing a

joint return for the same tax year; (2) whether petitioner is

entitled to dependency exemption deductions; (3) whether

petitioner is entitled to the child tax credit; and (4) whether

petitioner is entitled to the child care credit.

                           Background

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

The stipulation of facts and the exhibits received into evidence

are incorporated herein by reference.   When the petition was

filed, petitioner resided in Texas.

     In 2006 petitioner and her husband resided in the same

household and had two children, ages 17 and 9.

     On March 23, 2007, petitioner and her husband timely filed a

joint Federal income tax return for 2006 and claimed two

dependency exemption deductions and the child tax credit and the

child care credit with respect to one of the children.1    On the

joint return, petitioner and her husband reported a tax liability


     1
      When petitioner and her husband filed their joint Federal
income tax return they were in divorce proceedings. Petitioner
and her husband divorced in 2008.
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of $17,162.    Application of Federal tax credits including the

credit for withheld tax, the child tax credit, and the child care

credit resulted in a tax due of $60.      Petitioner and her husband

remitted $60 with the joint return.

     On April 5, 2007, petitioner filed for 2006 a Federal income

tax return as married filing separately.     On that return

petitioner claimed the same two dependency exemption deductions,

the child tax credit, and the child care credit.     Respondent

processed the separate 2006 return and sent petitioner a refund

of $3,496.

     On December 31, 2007, respondent issued a notice of

deficiency to petitioner disallowing the dependency exemption

deductions and the credits on her married filing separate return

for 2006.    In the notice of deficiency, respondent states:

     Thank you for your reply received on 01/19/2008, our
     records show that you filed two income tax returns for
     the 2006 tax year, and claimed the same children on
     both returns. Since you have not provided court/legal
     documents showing that you were given physical custody
     over the two children during the 2006 year, by the tie-
     breaker rule the dependent exemptions will be allowed
     to the person with the highest adjusted gross income
     (AGI) during 2006 year. We are disallowing the
     dependent exemptions until you show otherwise.

                             Discussion

Burden of Proof

     In general, the Commissioner’s determination set forth in a

notice of deficiency is presumed correct, and the taxpayer bears

the burden of proving otherwise.    Rule 142(a); INDOPCO, Inc. v.
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Commissioner, 503 U.S. 79, 84 (1992); Welch v. Helvering, 290

U.S. 111, 115 (1933).   Section 7491(a), however, places the

burden of proof on the Commissioner with regard to certain

factual issues.    Because petitioner has not alleged or shown that

section 7491(a) applies, the burden of proof remains on

petitioner.

Joint or Separate Return

      Section 6013(a) permits a husband and wife to file a joint

return.   Spouses who elect to file a joint return for a tax year

are required to compute their tax on the aggregate income of both

spouses, and both spouses are jointly and severally liable for

all taxes due.    See sec. 6013(d)(3); Butler v. Commissioner, 114

T.C. 276 (2000).   Where spouses file a joint return with respect

to a tax year, neither spouse may thereafter elect married filing

separately status for that tax year if the time for filing the

tax return of either spouse has expired.   See Ladden v.

Commissioner, 38 T.C. 530, 534 (1962); Haigh v. Commissioner,

T.C. Memo. 2009-140; sec. 1.6013-1(a)(1), Income Tax Regs.

     Petitioner and her husband timely filed their joint return

for 2006 on March 23, 2007.   On April 5, 2007, petitioner timely

filed a separate return for the same tax year.    Generally, the

time for filing a tax return is the 15th day of April following

the close of the calendar year.   Sec. 6072(a).   Since petitioner

filed as married filing separately before the time for either
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spouse to file a return had expired, her separate return is

valid.   See sec. 1.6013-1(a)(1), Income Tax Regs.   The filing of

petitioner’s separate return, however, is not dispositive of

petitioner’s entitlement to the claimed dependency exemption

deductions and tax credits.

Dependency Exemption Deductions

     Deductions and credits are a matter of legislative grace,

and the taxpayer bears the burden of proving entitlement to any

deduction or claimed credit.    Rule 142(a); Deputy v. du Pont, 308

U.S. 488, 493 (1940).

     Section 151(c) allows a deduction for each dependency

exemption as defined in section 152.    Section 152(a) provides

that a dependent means a “qualifying child” or a “qualifying

relative.”    Section 152(c)(1) defines a qualifying child as an

individual:    (1) Who bears a relationship to the taxpayer, such

as a child of the taxpayer; (2) who has the same principal place

of abode as the taxpayer for more than one-half of the tax year;

(3) who has not attained the age of 19 or is a student who has

not attained the age of 24 as of the close of the calendar year;

and (4) who has not provided over one-half of such individual’s

own support for the calendar year in which the tax year of the

taxpayer begins.

     Petitioner argues that because she provided over half of the

support for her two children, she is entitled to dependency
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exemption deductions and tax credits.     The problem with this

argument is that the Code provides to the taxpayer for the year

at issue a deduction with respect to a qualifying child.2    Sec.

152(a), (c).   The definition of a qualifying child no longer

specifies a support requirement for the taxpayer seeking a

deduction, but rather delineates a relationship, residency, age,

and self-support test for the individual considered to be a

qualifying child.   See sec. 152(c)(1).

     The Code also provides an objective rule for determining

which taxpayer or parent is entitled to a dependency exemption

deduction in the event that both parents attempt to treat the

same individual as a qualifying child on separately filed

returns.   This rule, also referred to as the “tie-breaker rule”,

is codified in section 152(c)(4)(B)(ii).     Under section

152(c)(4)(B), “if the parents claiming any qualifying child do

not file a joint return together, such child shall be treated as

the qualifying child of * * * (ii) * * * the parent with the

highest adjusted gross income.”

     Respondent argues that petitioner is not entitled to

dependency exemption deductions and tax credits because


     2
      The Working Families Tax Relief Act of 2004 (Act), Pub. L.
108-311, secs. 201 and 206, 118 Stat. 1169, 1176, amended secs.
151 and 152. These amendments are effective for tax years
beginning after Dec. 31, 2004. Id. sec. 208, 118 Stat. 1178.
Before the Act, the “old support test” defined a “dependent” as
an individual over half of whose support was received from the
taxpayer.
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petitioner’s former husband had the higher adjusted gross income

for 2006.   According to respondent, petitioner’s former husband

is, therefore, the only taxpayer entitled to the deductions under

section 151.   Petitioner bears the burden of proof, and she has

failed to allege and prove that she had the higher adjusted gross

income for 2006.    Therefore, petitioner is not entitled to the

dependency exemption deductions pursuant to section

152(c)(4)(b)(ii).

Child Tax Credit

     With respect to the child tax credit for 2006, a taxpayer

may claim a credit against Federal income tax of up to $1,000 for

each qualifying child of the taxpayer.       Sec. 24(a).   For purposes

of section 24(a) the term “qualifying child” means a qualifying

child of the taxpayer, as defined in section 152(c), who is not

yet 17.

     Because the Court has found that petitioner is not entitled

to a dependency exemption deduction for either of her two

children, as qualifying children for 2006, she is not entitled to

the child tax credit for 2006.

Child Care Credit

     Section 21(a) allows a taxpayer a credit for a certain

percentage of employment-related expenses incurred to enable the

taxpayer to be employed gainfully, including expenses for the

care of a “qualifying individual”.       See sec. 21(a) and (b)(2).   A
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qualifying individual must be:    (1) The taxpayer’s qualifying

child or qualifying relative under 13; (2) certain of the

taxpayer’s qualifying children or relatives who are unable to

care for themselves; or (3) a spouse of the taxpayer unable to

care for himself or herself who lives with the taxpayer for more

than half of the taxable year.

     Because petitioner has no qualifying individuals, she is not

entitled to the child care credit for 2006.

     Accordingly, for the foregoing reasons, the Court sustains

respondent’s determination that petitioner is not entitled to

dependency exemption deductions, the child tax credit, and the

child care credit for 2006.

     Other arguments made by the parties and not discussed herein

were considered and rejected as irrelevant, without merit, or

moot.

     To reflect the foregoing,


                                          Decision will be entered

                                     for respondent.
