                  T.C. Summary Opinion 2002-69



                     UNITED STATES TAX COURT



                   ARTHUR MCGEE, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 4735-01S.            Filed June 11, 2002.



     Arthur McGee, pro se.

     Margaret A. Martin, Daniel J. Parent, and Jeremy McPherson,

for respondent.



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

the provisions of section 7463 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.   Unless otherwise indicated,

subsequent section references are to the Internal Revenue Code in
                                 - 2 -

effect for the year in issue, and all Rule references are to the

Tax Court Rules of Practice and Procedure.

     Respondent determined a deficiency of $4,326 in petitioner’s

1999 Federal income tax.    The issues for decision are whether

petitioner is entitled to the following:    (1) Two dependency

exemption deductions; (2) head of household filing status; and

(3) an earned income credit.1

     At the time the petition was filed, petitioner resided in

Vallejo, California.

     Throughout 1999 petitioner was married to Cynthia McGee.

Because of marital problems, petitioner lived apart from his wife

at his parents’ house with two of his sons.     Petitioner allegedly

paid to his parents rent of $300 per month for use of a room in

their 3-bedroom house.     Petitioner and his two sons lived

together in the room that petitioner rented.

     On his 1999 Federal income tax return petitioner claimed

dependency exemption deductions for his two sons.     Petitioner

also claimed head of household filing status and an earned income

credit.   In the notice of deficiency, respondent disallowed the

claimed dependency exemption deductions, the head of household

filing status, and the full amount of the claimed earned income

credit.


     1
       Petitioner also claimed a child tax credit. His
eligibility for the child tax credit is a computational matter.
                                 - 3 -

     The first issue for decision is whether petitioner is

entitled to dependency exemption deductions for his two sons.

Section 151(c)(1) allows a taxpayer to deduct an exemption amount

for each dependent as defined in section 152.    Under section

152(a), the term “dependent” means certain individuals over half

of whose support was received from the taxpayer during the

calendar year for which such individuals are claimed as

dependents.   Support includes food, shelter, clothing, medical

and dental care, education, and the like.    Sec. 1.152-1(a)(2)(i),

Income Tax Regs.    Eligible individuals who may be claimed as

dependents include, among others, sons of the taxpayer.    Sec.

152(a)(1).

     In deciding whether an individual received over half of his

support from the taxpayer, we evaluate the amount of support

furnished by the taxpayer as compared to the total amount of

support received by the claimed dependent from all sources.

Turecamo v. Commissioner, 554 F.2d 564, 569 (2d Cir. 1977), affg.

64 T.C. 720 (1975); sec. 1.152-1(a)(2)(i), Income Tax Regs.      The

taxpayer must initially demonstrate, by competent evidence, the

total amount of support furnished by all sources for the taxable

year at issue.     Blanco v. Commissioner, 56 T.C. 512, 514 (1971).

If the amount of total support is not established and cannot be

reasonably inferred from competent evidence available to the

Court, it is not possible to conclude that the taxpayer claiming
                                 - 4 -

the exemption provided more than one-half of the support for the

claimed dependent.     Id. at 514-515.

     Petitioner failed to establish that he provided more than

one-half of the total support of his sons that lived with him.

See Rule 142(a).2    On his 1999 Federal income tax return

petitioner reported total income of $17,415.    In contrast his

parents reported total income exceeding $100,000 for the same

year.    Petitioner and his two sons lived in petitioner’s parents’

home for the entire year 1999.    Petitioner has failed to

establish either the total amount of support that petitioner’s

sons received from all sources or the amount of support that they

received from petitioner.    Other than alleged receipts for his

monthly rent payments of $300 to his parents, the only evidence

of support that petitioner presented to the Court was his

unsubstantiated testimony that he provided “100 percent” of the

support of his sons.    He presented no checks to substantiate his

alleged payments.    He had no grocery receipts or receipts for

alleged payments for clothing, and he admitted that he made no

payments for his sons’ entertainment.    The receipts that

petitioner introduced concerning supposed payments of rent to his

mother all appear to have been prepared and signed at the same

time.    Petitioner’s mother did not testify about the payments.


     2
       Sec. 7491(a) does not shift the burden of proof to
respondent in this case because petitioner has not presented
credible evidence concerning the support of his sons and has
failed to provide substantiation of his claims of payments for
their support and benefit. Sec. 7491(a)(1).
                               - 5 -

At the calendar call, petitioner had been warned to have his

witnesses available to testify at trial, and he made no

explanation of his mother’s absence.    Consequently the receipts

are not convincing evidence that petitioner paid even the claimed

amount of rent.   Petitioner did not present any witnesses to

corroborate any of his testimony.    As petitioner bears the burden

of proof, we must sustain respondent’s disallowance of the

dependency exemption deductions.

     The second and third issues for decision are whether

petitioner is entitled to head of household filing status and

whether petitioner is entitled to an earned income credit.

Generally, an individual who is married at the close of the

taxable year is not entitled to head of household filing status.

Sec. 2(b)(1).   Similarly, an individual who is married at the

close of the taxable year is not entitled to an earned income

credit if he does not file a joint income tax return with his

spouse for the taxable year.   Sec. 32(d).   An exception to these

general rules exists but generally applies only if the individual

maintains a household which is the principal place of abode of at

least one child for whom the individual is entitled to a

dependency exemption deduction.    Secs. 2(c), 32(d), 7703(b).3

     Petitioner was married to Cynthia McGee at all times during



     3
       Further exceptions exist, but petitioner does not assert,
and nothing in the record indicates, that they may be applicable.
See secs. 2(b)(2), 7703(a).
                                 - 6 -

1999.    Petitioner did not file a joint income tax return with her

for that year.   We have held that petitioner is not entitled to

any dependency exemption deduction for 1999.       Consequently,

petitioner is not entitled to head of household filing status or

to an earned income credit.4   Secs. 2(b)(1), 32(d).

     Reviewed and adopted as the report of the Small Tax Case

Division.

     To reflect the foregoing,

                                              Decision will be entered

                                         for respondent.




     4
       Since petitioner was married at all times during 1999,
respondent might have utilized the standard deduction applicable
to married individuals filing separately. Respondent has not
done so, and consequently respondent’s deficiency determination
for 1999 was understated. Respondent’s counsel has explicitly
waived any claim to the additional deficiency resulting from this
apparent error. Moreover, because respondent did not assert any
claim for an increased deficiency, we lack jurisdiction to
redetermine the correct amount of the deficiency. See sec.
6214(a); Estate of Petschek v. Commissioner, 81 T.C. 260, 271-272
(1983), affd. 738 F.2d 67 (2d Cir. 1984).
