                        T.C. Memo. 2008-37



                     UNITED STATES TAX COURT



                 ALBERT ANDERSON, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 22417-05.              Filed February 21, 2008.



     Albert Anderson, pro se.

     Charles E. Buxbaum, for respondent.



                        MEMORANDUM OPINION


     THORNTON, Judge:   Respondent determined a $2,406 deficiency

in petitioner’s 2004 Federal income tax.     The issues for decision

are whether petitioner is entitled to claim his son as a

dependent and whether he is entitled to the earned income credit.

     Unless otherwise indicated, all section references are to

the Internal Revenue Code in effect for the year at issue.
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                             Background

     Some facts have been stipulated and are so found.    When he

petitioned the Court, petitioner resided in New Jersey.

     In December 2003 petitioner married Angela Whitted (Ms.

Whitted).   Petitioner and Ms. Whitted remained married throughout

2004 but never lived together.

     On May 15, 2004, petitioner had a son by Ms. Cynthia Adjin-

Tettey (Ms. Adjin-Tettey).   Petitioner did not live with Ms.

Adjin-Tettey; she and their infant son lived a 10- or 15-minute

drive away.

     In 2004 petitioner held two jobs.    From 9 a.m. to 5 p.m., he

worked as a gas station attendant at Sam’s Club, and from 11 p.m.

to 7 a.m., he worked as a room service attendant at the Tropicana

Casino in Atlantic City.

     On his 2004 Federal income tax return petitioner reported

wage income of $7,062.   He claimed head of household filing

status and a dependency exemption deduction for his and Ms.

Adjin-Tettey’s son.   Petitioner also claimed an earned income

credit of $2,406.

     In the notice of deficiency respondent determined that

petitioner was entitled to no dependency exemption deduction and

that his proper filing status was single.   Respondent also

disallowed the earned income credit.
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                             Discussion

     The $2,406 deficiency arises from respondent’s disallowance

of the earned income credit of the same amount.    The amount of

the deficiency appears to be unaffected by respondent’s changing

petitioner’s filing status; consequently, we need not address

that issue.1   See LTV Corp. v. Commissioner, 64 T.C. 589, 594-595

(1975); Cohen v. Commissioner, 20 B.T.A. 647, 648 (1930).

Similarly, respondent’s disallowance of the dependency exemption

deduction for petitioner’s son does not appear to affect directly

the amount of the deficiency.    As discussed below, however, the

dependency issue is relevant in assessing petitioner’s

entitlement to the earned income credit.    For that reason, we

address the dependency issue before considering petitioner’s

entitlement to the earned income credit.

1.   Dependency Exemption Deduction

     A taxpayer is allowed a dependency exemption deduction for

each dependent.   Sec. 151(c)(1).   To qualify as the taxpayer’s

dependent, an individual must, among other things, receive (or be

treated as receiving) over half of his or her support from the

taxpayer.   Sec. 152(a).   In the case of a child whose parents


     1
       We note, however, that to qualify as a head of household
an individual must be unmarried, sec. 2(b)(1), and that an
individual will be treated as not married if so treated under
sec. 7703(b). The parties agree that petitioner was married, and
as discussed infra, we conclude that petitioner should not be
treated as not married under sec. 7703(b).
                                - 4 -

live apart at all times during the last 6 months of the calendar

year, a special rule generally treats the child as receiving over

half of his or her support from the parent having custody for the

greater portion of the year.    See sec. 152(e)(1); sec. 1.152-

4(b), Income Tax Regs.   This special rule applies only if the

child both:   (1) Receives over half of his or her support during

the year from his or her parents; and (2) is in the custody of

one or both parents for more than half the year.    Sec. 152(e)(1).

     Petitioner claims that his infant son lived with him in

2004.   He acknowledges that his son’s mother, Ms. Adjin-Tettey,

lived at a different address.    According to petitioner’s

testimony, each morning a friend would drive Ms. Adjin-Tettey

(who was unemployed) and the infant son from her residence to

petitioner’s, where mother and son would remain until petitioner

came home from his day job so that they would be with him while

he slept a couple of hours.    Then, according to petitioner’s

testimony, on his way to his night job he would drop Ms. Adjin-

Tettey and his son off at her own residence, where mother and son

would spend the night before repeating the routine the next day.

     Petitioner’s testimony strains credulity, but even if we

were to assume his testimony is true, petitioner cannot prevail

on this issue.   In the first instance, he has not shown that he

or Ms. Adjin-Tettey, or the two together, provided over half the
                                 - 5 -

child’s total support during 2004.2      Moreover, under petitioner’s

own version of the facts, it is apparent that Ms. Adjin-Tettey

had custody of the child for a greater portion of the year than

did petitioner.   Accordingly, under the special rule of section

152(e)(1), even if he or Ms. Adjin-Tettey, or the two together,

had provided over half the child’s total support during 2004, the

exemption would belong to Ms. Adjin-Tettey and not to

petitioner.3   Therefore petitioner cannot claim his son as a

dependent for 2004.

2.   Earned Income Credit

     Section 32 allows an earned income credit.      In the case of a

married individual, the earned income credit is allowable only if

a joint return is filed for the taxable year.      Sec. 32(d); sec.

1.32-2(b)(2), Income Tax Regs.    For this purpose, marital status

is determined under section 7703 as of the end of the taxable

year.

     The parties agree that petitioner was married to Ms. Whitted

as of December 31, 2004.    Petitioner and Ms. Whitted did not file



     2
       Petitioner provided several receipts    that showed
approximately $535 worth of items purchased    for a child but has
not established the total amount of support    provided for his son
or the portion of the total support that he    or Ms. Adjin-Tettey
provided.
     3
       Petitioner does not contend and the record does not
suggest that Ms. Adjin-Tettey ever released her claim to the
exemption pursuant to sec. 152(e)(2).
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a joint return for 2004.4   Accordingly, petitioner is not allowed

to claim the earned income credit for 2004 unless he is able to

establish that pursuant to section 7703(b) he and Ms. Whitted

should be treated as not married.    Petitioner would need to

establish, among other things, that he was entitled to claim a

dependency exemption deduction for his son for 2004 and that his

home was the principal place of abode for his son for more than

half of 2004.   See sec. 7703(b)(1).   As just discussed, however,

petitioner is not entitled to a dependency exemption deduction

for his son for 2004.   Moreover, petitioner has failed to show

that his home was his son’s principal place of abode for more

than half of 2004.   Under petitioner’s own version of the facts,

his son was always with Ms. Adjin-Tettey and always slept at her

residence.   Accordingly, the son’s principal place of abode

during 2004 was with his mother.    Petitioner is ineligible for

the earned income credit for 2004.




     4
       At trial, petitioner sought to establish that he and Ms.
Whitted had filed an amended joint 2004 return. Petitioner was
unable to produce a signed copy of any such amended joint return
or any proof that he ever mailed such a return to respondent.
Respondent’s records show no amended joint return as having been
filed. In his petition, petitioner states that the purported
amended joint return was “only for immigration purposes.” We
conclude that petitioner never filed a 2004 joint return with
respondent.
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To reflect the foregoing,


                                         Decision will be entered

                                    for respondent.
