                  T.C. Summary Opinion 2004-38



                     UNITED STATES TAX COURT



                MATTHEW D. GILMORE, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 15518-03S.           Filed March 25, 2004.


     Matthew D. Gilmore, pro se.

     Albert G. Kobylarz, Jr., for respondent.



     PANUTHOS, Chief Special Trial Judge:   This case was heard

pursuant to the provisions of section 74631 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.


     1
        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.
                               - 2 -

     Respondent determined a deficiency in petitioner’s Federal

income tax of $4,088 for the taxable year 2002.   The issues for

decision are: (1) Whether petitioner is entitled to dependency

exemption deductions for Ileane Gilmore2 and Janiah Gilmore, (2)

whether petitioner is entitled to head-of-household filing

status, (3) whether petitioner is entitled to an earned income

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

credits.

Background

     Some of the facts have been stipulated, and they are so

found.   The stipulation of facts and attached exhibits are

incorporated herein by this reference.   At the time of filing the

petition, petitioner resided in Elizabeth, New Jersey.

     During the year in issue, petitioner was 19 years old.

Petitioner lived in a three-bedroom apartment with his mother

Chanel Gilmore, and three siblings, Chantel, Sonora, and Tim.

Chantel had two children, Ileane (born August 23, 1998) and

Janiah (born February 9, 2002), who also lived in the household.

     During 2002 petitioner worked for Friendly’s and Ruby

Tuesday and earned a total of approximately $9,359.   Petitioner

also received unemployment compensation from the New Jersey



     2
        We note that the tax return listed the child as Ileane
Gilmore, but the child’s birth certificate listed her as Ileane
Celine Robbins and that Chantel Gilmore is reflected as the
mother.
                               - 3 -

Department of Labor in the amount of $1,694.   Petitioner’s mother

worked full time during the year in issue and received minimum

wage from a local hotel.   Chantel did not work during the year in

issue, however she did receive some public assistance.

     The record is incomplete as to the expenses incurred and

paid by the household.   The expenses for support of the household

were shared between petitioner’s mother, petitioner, and Chantel.

The amount of the expenses relating to support of Ileane and

Janiah is unclear as is the allocation of support of the

household between petitioner’s mother, petitioner, and Chantel.

Petitioner did, however, treat Ileane and Janiah as his own

children in providing some support and caretaking.

     On his 2002 Federal income tax return petitioner reported

wage income of $9,359 and unemployment compensation of $1,694.

Petitioner claimed dependency exemption deductions for Ileane and

Janiah, an earned income credit, and child tax credits, and

computed his tax using head-of-household status rates.    In the

notice of deficiency, respondent disallowed the claimed

dependency exemption deductions, the earned income and child tax

credits, and adjusted the filing status to single.

Discussion

     The burden of proof is on petitioner.   Section 7491 may

shift the burden of proof to the Commissioner under certain

circumstances.   Petitioner has not established that he complied
                                  - 4 -

with the requirements of section 7491(a)(2)(A) and (B) to

substantiate items, maintain required records, and fully

cooperate with respondent’s reasonable requests.    Accordingly,

the burden does not shift.

     1.   Dependency Exemption Deductions

     A taxpayer may be entitled to claim as a deduction an

exemption amount for each of his or her dependents, over half of

whose support is provided by the taxpayer.    Secs. 151(c)(1),

152(a).   A dependent includes a son or daughter of a sister of

the taxpayer.   Sec. 152(a)(6).

     As to the support test, a taxpayer generally must provide

more than half of a claimed dependent’s support for the calendar

year in which the taxable year of the taxpayer begins.    Sec.

152(a).   In order to satisfy this test, a taxpayer must establish

the total support expended on behalf of the claimed dependents

from all sources for the year and demonstrate that he provided

more than half of this amount.     See Archer v. Commissioner, 73

T.C. 963, 967 (1980); Blanco v. Commissioner, 56 T.C. 512, 514-

515 (1971).

     There is an absence of evidence relating to the total amount

of support as well as petitioner’s share of support.    While there

is some general information as to purchase of groceries, payment

of rent, and payments of other household expenses by petitioner,

we cannot conclude from this meager record the amount of the
                                 - 5 -

total support provided to Ileane and Janiah nor the amount of

support provided by petitioner.     Respondent is sustained on this

issue.

     2. Head of Household

     Section 1(b) imposes a special tax rate on individuals

filing as head of household.     As relevant herein, section 2(b)

defines a “head of household” as an unmarried individual who

maintains as his home a household that for more than one-half of

the taxable year constitutes the principal place of abode of a

person who is a dependent of the taxpayer, if the taxpayer is

entitled to a deduction for the taxable year for that dependent

under section 151.

     The Court has sustained respondent’s determination

disallowing the claimed dependency exemption deductions, and, as

a result, petitioner is not entitled to head-of-household filing

status for 2002.   Thus, respondent’s determination that

petitioner is not entitled to head-of-household filing status is

sustained.

     3.   Earned Income Credit

     Section 32(a) provides for an earned income credit in the

case of an eligible individual.     Section 32(c)(1)(A)(i), in

pertinent part, defines an “eligible individual” as any
                                 - 6 -

individual who has a qualifying child for the taxable year.3       A

qualifying child is one who satisfies a relationship test, a

residency test, and an age test.     Sec. 32(c)(3).   Ileane and

Janiah clearly satisfy the residency test and the age test.        We

thus consider whether they satisfy the relationship test.4     For

the tax year in issue, the relationship test under section

32(c)(3) required as follows:

     (B).   Relationship test.--

          (i) In general.--An individual bears a
     relationship to the taxpayer described in this
     subparagraph if such individual is--

                (I) a son, daughter, stepson, or
            stepdaughter, or a descendant of any such
            individual,

                (II) a brother, sister, stepbrother, or
            stepsister, or a descendant of any such
            individual, who the taxpayer cares for as the
            taxpayer’s own child, or

     It is clear that Ileane and Janiah are petitioner’s nieces,

the descendants of his sister.     The remaining part of the

relationship test under section 32(c)(3)(B)(i)(II) is that the



     3
        Sec. 32(c)(1)(C) sets forth the conditions when an
individual shall be treated as the qualifying child of the
taxpayer where two or more taxpayers claim an individual as a
qualifying child. Respondent has not argued that Ileane or
Janiah was a qualifying child to someone other than petitioner,
nor is there any evidence in this record upon which the Court
could make such a finding.
     4
        Respondent incorrectly referred to sec. 32(c) as in
effect for years prior to 2002, asserting that petitioner did not
satisfy the relationship test.
                                - 7 -

taxpayer cares for the individual as his own child.    Thus, we

must also decide whether petitioner cared for Ileane and Janiah

as his own children.    In this connection, Ileane and Janiah lived

with petitioner for the entire year, and petitioner assisted in

support and caretaking of the children.    Petitioner, even at the

young age of 19, was the oldest male in the household and

contributed to the household.    While the children’s grandmother

worked, it is not entirely clear the extent to which parenting

responsibilities were shared by members of the household.    We

conclude, based on the entire record, that petitioner cared for

his nieces as his own children, and thus, the children are

qualifying children for purposes of computation of the earned

income credit under section 32.    We find for petitioner on this

issue.

     4.   Child Tax Credits

     We next consider the child tax credits.    A taxpayer may be

entitled to a credit against tax with respect to each “qualifying

child”.   Sec. 24(a).   The plain language of section 24

establishes a three-pronged test to determine whether a taxpayer

has a qualifying child.    If one of the qualifications is not met,

the claimed child tax credit must be disallowed.    The first

element of the three-pronged test requires that a taxpayer must

have been allowed a deduction for that child under section 151.

Sec. 24(c)(1)(A).
                              - 8 -

     As stated supra, the Court has sustained respondent’s

determination that petitioner is not entitled to dependency

exemption deductions for the children.    Thus, petitioner fails

the first prong of the test of section 24.    The Court sustains

respondent’s determination regarding the child tax credits under

section 24.

     Reviewed and adopted as the report of the Small Tax Case

Division.

                                      Decision will be entered

                               under Rule 155.
