                    T.C. Summary Opinion 2009-104



                        UNITED STATES TAX COURT



                  VIRGINIA MANN, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 23075-08S.              Filed July 9, 2009.



     Virginia Mann, pro se.

     Heather D. Horton, for respondent.



     RUWE, Judge:     This case was heard pursuant to the provisions

of section 74631 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.


     1
       Unless otherwise indicated, all section references are to
the Internal Revenue Code as amended and 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 of $4,406 in petitioner’s

2007 Federal income tax.   The issues for decision are:   (1)

Whether petitioner is entitled to dependency exemption deductions

for her nephews, GM and TM; (2) whether petitioner is entitled to

head of household filing status; (3) whether petitioner is

entitled to a child tax credit of $21 and an additional child tax

credit of $976 for her nephews GM and TM; and (4) whether

petitioner is entitled to an earned income tax credit of $2,392.

                            Background

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

The stipulation of facts and the attached exhibits are

incorporated herein by this reference.

     At the time the petition was filed, petitioner resided in

Arizona.

     Petitioner was not married at the close of 2007.     Petitioner

filed her 2007 Federal income tax return as a head of household

and claimed dependency exemption deductions for her two nephews,

GM and TM, and child tax and earned income tax credits.

     TM is petitioner’s nephew.   During 2007 TM was 11 years old

and resided with his mother, petitioner’s sister, in Tempe,

Arizona, where he attended school.     TM stayed with petitioner at

her residence in St. Michael’s, Arizona, only during school

breaks and summer vacations.   TM did not reside with petitioner

for more than one-half of 2007.   Petitioner did not offer any
                                - 3 -

evidence that she provided over one-half of TM’s support during 2007.

     GM is petitioner’s nephew.    During 2007 GM was 22 years old

and had no job or other source of income.    Petitioner assumed

responsibility for taking care of GM in order to assist her

sister, GM’s mother.   Petitioner provided GM with almost all of

his material needs and provided more than one-half of GM’s

support during 2007.   Petitioner and GM resided in petitioner’s

“hogan”, which is a one-room log cabin without running water or

electricity.   Their sole source of income during 2007 was

petitioner’s modest salary.    GM attended school part time in

order to prepare for the General Educational Development test.

GM was not a full-time student during 2007.

                              Discussion

Dependency Exemption Deductions

     Section 151 allows an exemption for each individual who

qualifies as a dependent 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:

     (A) who bears a relationship to the taxpayer, such as a

niece or nephew of the taxpayer;
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     (B) who has the same principal place of abode as the

taxpayer for more than one-half of such taxable year (aside from

special rules applicable to divorced or separated parents);

     (C) who is under the age of 19 or is a student who has not

attained the age of 24 as of the close of the calendar year.

Section 152(f)(2) provides that to qualify as a “student” the

individual must have been a full-time student during each of 5

calendar months during the calendar year; and

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

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

the taxpayer begins.

     Petitioner’s nephews meet the requirements of section

152(c)(1)(A) since they are children of petitioner’s sister.

However, TM did not reside in petitioner’s home for more than

one-half of taxable year 2007 and therefore does not meet the

requirement in section 152(c)(1)(B).     Consequently, TM was not a

qualifying child.

     GM did reside with petitioner for the entire taxable year

2007.   However, GM was 22 years old during taxable year 2007.   In

order to be a qualifying child, GM would have to have been a

full-time student during 2007.    As we have already found, GM was

not a full-time student during 2007 and therefore was not a

qualifying child under section 152(c)(1).
                                 - 5 -

     An individual might also qualify as a dependent if he is a

“qualifying relative” within the definition of section 152(d),

which provides:

          SEC. 152(d).     Qualifying Relative.--For purposes
     of this section--

               (1) In general.--The term “qualifying
          relative” means, with respect to any taxpayer
          for any taxable year, an individual--

                       (A) who bears a relationship
                  to the taxpayer described in
                  paragraph (2),

                       (B) whose gross income for the
                  calendar year in which such taxable
                  year begins is less than the
                  exemption amount (as defined in
                  section 151(d)),

                       (C) with respect to whom the
                  taxpayer provides over one-half of
                  the individual’s support for the
                  calendar year in which such taxable
                  year begins, and

                       (D) who is not a qualifying
                  child of such taxpayer or of any
                  other taxpayer for any taxable year
                  beginning in the calendar year in
                  which such taxable year begins.

               (2) Relationship. For purposes of
          paragraph (1)(A), an individual bears a
          relationship to the taxpayer described in
          this paragraph if the individual is any of
          the following with respect to the taxpayer;

                  *    *    *    *    *    *    *

                       (E) A son or daughter of a
                  brother or sister of the taxpayer.
                                - 6 -

       TM is not a qualifying relative because petitioner has not

established that she provided over one-half of his support during

2007.    However, on the previously found facts, GM satisfies the

requirements of section 152(d) and is a qualifying relative.    We

therefore hold that petitioner is entitled to claim GM as a

dependent during 2007 pursuant to section 152, and it follows

that petitioner is entitled to a dependency exemption deduction

for GM pursuant to section 151(c).

Filing Status

       Under section 2(b)(1)(A) and (3), an individual may file as

head of household if she is a U.S. citizen or resident, is not

married at the close of her taxable year, and maintains as her

home a household which constitutes for more than one-half of such

taxable year the principal place of abode of a qualifying child

or a qualifying relative.

       We have found that GM is a qualifying relative, and

petitioner meets the other requirements of section 2(b)(1)(A) and

(3).    Consequently, petitioner is entitled to head of household

filing status for taxable year 2007.

Child Tax Credit and Additional Child Tax Credit

       Section 24(a) provides a credit (subject to certain income

limitations) against income tax for each qualifying child of a

taxpayer.    The term “qualifying child” means a qualifying child
                               - 7 -

of the taxpayer (as defined in section 152(c)) who has not

attained age 17.   Sec. 24(c)(1).

     It is clear from our prior findings that neither GM nor TM

was a qualifying child under section 152(c) for purposes of

section 24.   Consequently, petitioner is not entitled to either

the child tax credit or the additional child tax credit for

taxable year 2007.

Earned Income Tax Credit

     Petitioner claimed an earned income tax credit on the basis

that her nephew TM was a qualifying child for taxable year 2007.

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

case of an eligible individual.     To be eligible for the earned

income tax credit on the basis of having a qualified child,

specific requirements listed in section 32(c) must be met with

respect to each qualifying child.

     Section 32(c)(1), in pertinent part, defines an “eligible

individual” as an individual who has a qualifying child for the

taxable year.   Sec. 32(c)(1)(A)(i).    Pursuant to section

32(c)(3)(A), a qualifying child must meet the requirements of

section 152(c).

     On the basis of our prior findings, we hold that neither TM

nor GM was a qualifying child for purposes of section 152(c).
                                 - 8 -

Consequently, petitioner is not entitled to the earned income tax

credit for taxable year 2007.2

     To reflect the foregoing,


                                              Decision will be entered

                                         under Rule 155.




     2
       We note that petitioner was not eligible for an earned
income tax credit as an individual with no qualifying children.
Although petitioner’s income in 2007 was modest, her income was
sufficient to completely phase out her eligibility for the credit
irrespective of her filing status.
