                  T.C. Summary Opinion 2001-89



                     UNITED STATES TAX COURT



                 DARRELL D. REED, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 4718-99S.                      Filed June 21, 2001.


     Darrel D. Reed, pro se.

     A. Gary Begun, for respondent.


     GOLDBERG, 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

effect for the years in issue.
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     Respondent determined deficiencies in petitioner’s Federal

income taxes for 1995 and 1996 in the amounts of $2,433 and

$2,963, respectively.   The issues for decision are:   (1) Whether

petitioner is entitled to dependency exemption deductions; (2)

whether petitioner is entitled to head of household status; and

(3) whether petitioner is entitled to earned income credits.

Adjustments to the standard deduction are computational and will

be resolved by the Court’s holding on the issues in this case.

     Some of the facts in this case 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 lived in Detroit, Michigan.

     Petitioner lived in a 3-bedroom apartment during 1995 and

1996.   During these years, petitioner assisted, as needed, a

number of individuals with food, clothing, and shelter.

Petitioner was employed as a computer operator by First

Independence National Bank of Detroit during the years at issue.

     During 1995 and 1996, petitioner was in a relationship with

Thomasina Hunter (Ms. Hunter).    Ms. Hunter and petitioner were

never married.   Although Ms. Hunter did not live with petitioner,

petitioner alleges that Ms. Hunter’s daughters from a prior

relationship, Shalethia Hunter and Shanae Hunter (collectively

the children), resided with him during the years at issue.    At

all times relevant, the children were minors.
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     Although it appears that Ms. Hunter had full custody of the

children, there is scant evidence in the record as to her

employment history during the years at issue.    According to

petitioner, Ms. Hunter received public assistance during these

years.   Ms. Hunter had a total of five children, including

Shalethia and Shanae, although the record is unclear as to the

other children’s residence during the years at issue.

     Petitioner testified that the children lived with him from

1995 through the spring of 1997, when his relationship with Ms.

Hunter ended.   Petitioner paid for the children’s school supplies

and some clothes; however, other relatives also assisted in

purchasing their clothing.    Petitioner took the children to

school, and, on occasion, Sean Elms (Mr. Elms) watched them after

school if petitioner worked during the afternoons.    Petitioner

further testified that he did not receive any monetary

contributions from Ms. Hunter for the children’s support.

     Mr. Elms, a close family friend, also resided with

petitioner during the years at issue.    Petitioner claimed Mr.

Elms as a “step-brother” although the record is clear that there

is no legal relation between petitioner and Mr. Elms.    Mr. Elms

was not employed during the years at issue, and petitioner

provided some financial support for Mr. Elms, primarily in the

form of food and shelter.    Mr. Elms did not receive public

assistance during the years at issue.
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     Petitioner did not provide the Court with documentation of

the amounts paid to substantiate the support provided to the

children and Mr. Elms.    Petitioner testified that “all my records

for expenses were destroyed in a disaster in ‘98".   However, the

parties have stipulated that petitioner paid $4,200 and $4,320 in

rent for 1995 and 1996, respectively.

     On petitioner’s respective 1995 and 1996 Federal income tax

returns, he claimed dependency exemption deductions for the

children and Mr. Elms, head of household filing status, and

earned income credits.    For each year, respondent disallowed the

dependency exemption deductions because petitioner failed to

establish that he was entitled to the exemptions.    As a result of

the disallowance, respondent further determined that petitioner’s

filing status was single, not head of household, and also

disallowed the earned income credits.

Dependency Exemption

     Section 151(c) allows a taxpayer to deduct an annual

exemption amount for each dependent of the taxpayer.    As relevant

here, a “dependent” is defined in section 152(a) as an individual

“over half of whose support, for the calendar year in which the

taxable year of the taxpayer begins, was received from the

taxpayer”.   In order to prevail, petitioner must show by

competent evidence:    (1) The total support provided for each

individual claimed, and (2) that he provided more than half of
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such total support.   The amount of total support may be

reasonably inferred from competent evidence.     See Stafford v.

Commissioner, 46 T.C. 515, 518 (1966).     However, where the amount

of total support of an individual during the taxable year is not

shown, and cannot be reasonably inferred from competent evidence,

then it is not possible to conclude that the taxpayer has

contributed more than one-half.   See Blanco v. Commissioner, 56

T.C. 512, 515 (1971); Fitzner v. Commissioner, 31 T.C. 1252, 1255

(1959).

     The record based solely on petitioner’s claimed

contributions is incomplete.    Petitioner did not present evidence

to reconstruct the dollar amount of the total support for the

individuals claimed for the years at issue.     Total support

includes, inter alia, the cost of food, clothing, education,

household utilities, or home repair expenses necessary to

maintain the household in 1995 and 1996.     See Smith v.

Commissioner, T.C. Memo. 1997-544; sec. 1.152-1(a)(2)(i), Income

Tax Regs.   Although petitioner claims that his records were

destroyed in “a disaster in ‘98” he has not provided any details

of such disaster or what records were destroyed which could

substantiate his expenses.   We find petitioner’s testimony vague,

incomplete, and self-serving.   It is well settled that we are not

required to accept a taxpayer’s self-serving testimony in the

absence of corroborating evidence.      See Niedringhaus v.
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Commissioner, 99 T.C. 202, 212 (1992).

     Furthermore, it is reasonable to infer that Ms. Hunter may

have contributed a modicum amount to the support of her children.

Ms. Hunter received public assistance during the years in issue,

and without these amounts or additional amounts she may have

received from her extended family we are unable to determine the

total support available to the children by all able parties.    Ms.

Hunter did not testify at trial.

     By failing to establish the total amount of support provided

to the children from all sources, including Ms. Hunter’s public

assistance, we are unable to conclude that petitioner provided

more than one-half of the children’s total support during the

years in issue.   Furthermore, as to Mr. Elms, there is no

corroborating evidence to substantiate petitioner’s claimed

dependency deduction.   Therefore, we hold that petitioner is not

entitled to section 151 dependency exemption deductions for the

1995 and 1996 tax years.   Respondent is sustained on this issue.

Head of Household Status

     According to the relevant part of section 2(b), an

individual shall be considered a head of household if such

individual (1) is not married at the close of the taxable year

and (2) maintains as his home a household which constitutes for

more than one-half of the taxable year the principal place of

abode of an individual who is a dependent of the taxpayer, if the
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taxpayer is entitled to a deduction of the taxable year for such

person under section 151.

     Because we held above that petitioner is not entitled to a

deduction for the children under the provisions of sections 151

and 152, petitioner is not entitled to head of household status.1

Therefore, respondent is sustained on this issue.

Earned Income Credit

     The relevant parts of section 32 provide that an individual

is eligible for the earned income credit if the individual has a

“qualifying child”.    A qualifying child is one who satisfies a

relationship test, a residency test, an age test, and an

identification requirement.    See sec. 32(c)(3).

     Under the relationship test, the qualifying child must be a

son or daughter, a stepson or stepdaughter, or a foster child of

the taxpayer.   See sec. 32(c)(3)(A).    On his returns, petitioner

claimed the children as stepdaughters.    We disagree with

petitioner’s characterization.    Petitioner was never married to

the children’s mother, nor was he ever recognized as their legal

guardian.

     To be considered an “eligible foster child”, petitioner must


     1
          A taxpayer will not be considered to be a head of
household by reason of an individual who would not be a dependent
for the taxable year but for sec. 152(a)(9). See sec.
2(b)(3)(B)(i). Thus, even if we had held that petitioner is
entitled to dependency exemption deductions for Mr. Elms,
petitioner would still not qualify as a head of household.
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show that he cared for each child as his own child, and that each

child had the same principal place of abode as petitioner for the

entire taxable year.   See sec. 32(c)(3)(B)(iii).

     Petitioner has failed to offer any evidence showing that his

residence was the principal place of abode for the children other

than his self-serving testimony.   He did not have legal custody

of the children, nor did he offer any documentation corroborating

that they lived in his household during any part of the years in

issue.   This Court has previously recognized that the language of

section 32 shows Congress’ intent for the earned income credit to

be offered only to parents actually caring for children.      See

Smith v. Commissioner, supra.    Accordingly, we find that the

children were not the foster children of petitioner.      Because

petitioner has failed to meet the relationship test under section

32, it is not necessary to analyze the age or identity factors of

section 32.   Respondent is sustained on this issue.

     Reviewed and adopted as the report of the Small Tax Case

Division.

                                             Decision will be entered

                                        for respondent.
