                        T.C. Memo. 2001-321



                      UNITED STATES TAX COURT



             JAMES EDWARD BRIGGSDANIELS, Petitioner v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 18569-99.              Filed December 27, 2001.


     James Edward Briggsdaniels, pro se.

     Mathew A. Mendizabal and James A. Whitten, for respondent.



                        MEMORANDUM OPINION


     BEGHE, Judge:   Respondent determined deficiencies in

petitioner’s Federal income tax of $3,018 for 1997 and $3,760 for

1998.   The issues for decision are:    (1) Whether petitioner is

entitled to head of household filing status; (2) whether

petitioner is entitled to deductions for dependency exemptions;
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and (3) whether petitioner is entitled to an earned income

credit.   We hold for respondent on all issues.

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.

     Petitioner resided in San Jose, California, at the time the

petition was filed.

     Petitioner has three sons:   James, Jr., born May 17, 1979;

Jamar, born December 30, 1980; and Jeremy, born May 15, 1982.

     On July 16, 1996, a complaint against petitioner was filed

in the Superior Court of California in the case of County of

Santa Clara v. Daniels, No. DAO51877.    The suit was instituted by

Santa Clara County to establish that petitioner is the father of

James, Jr., Jamar, and Jeremy, and to collect reimbursement of

child support payments by the County to the children’s

caretakers.   On May 18, 1999, judgment was entered in favor of

the County, to the effect that petitioner’s fatherhood was

established, and that he was liable for child support of $25,847

for the period July 1993 through March 1999.

     Jeremy was under a court ordered out-of-home placement for

the following periods:   August 29, 1996 to August 4, 1997, and

February 3, 1998 to August 25, 1998.    During portions of 1997 and

1998, Jeremy was in the custody of the Santa Clara County
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Juvenile Hall and the Harold Holden Ranch for Boys, a Santa Clara

County juvenile facility.

     During portions of 1997, Jamar was in the custody of Santa

Clara Juvenile Hall and the Harold Holden Ranch for Boys.

     Petitioner introduced no evidence to establish amounts

contributed by him as support for James, Jr., Jeremy, and Jamar.

Discussion

     Respondent’s determination is generally presumed to be

correct, and petitioner bears the burden of proving that it is

incorrect.    Rule 142(a);1   Welch v. Helvering, 290 U.S. 111, 115

(1933).2

Issue 1.    Head of Household

     Petitioner claimed head of household filing status for 1997

and 1998.    Section 2(b)(1)(A) provides that a person shall be

considered a head of household if he is not married and provides

over half the cost of maintaining as his home a household that




     1
      All Rule references are to the Tax Court Rules of Practice
and Procedure, and all section references are to the Internal
Revenue Code in effect for the years in issue, unless otherwise
indicated.
     2
      Although respondent’s examination of the 1998 taxable year
commenced after July 22, 1998, sec. 7491 does not necessarily
shift the burden of proof to respondent on any of the issues in
the case. The stipulation of facts was prepared by respondent
using documents that respondent had obtained from sources other
than petitioner, and petitioner did not introduce any credible
evidence with respect to any of the issues in the case.
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for more than one-half the year was his child’s or children’s

principal place of abode.     Sec. 2(b)(1).

     Petitioner did not submit any evidence to prove that in

either 1997 or 1998 he provided over half the cost of maintaining

as his home a household that for more than one-half the year was

the principal place of abode of any of his three sons.

Petitioner has not shown that he qualifies for head of household

filing status for 1997 or 1998.     Respondent’s determination is

sustained.

Issue 2.    Dependency Exemptions

     Petitioner claimed dependency exemption deductions for his

three sons for 1997 and 1998.     Section 151(c)(1)(B) allows a

dependency exemption deduction for each child of the taxpayer so

long as the child has not attained age 19 (24 if the child is a

student) at the close of the taxable year and more than half of

the child’s support for the taxable year was received from the

taxpayer.    Sec. 152(a).   In order for petitioner to establish

that he provided more than half of the support for any of his

sons, he must show by competent evidence the total support

furnished for each of them from all sources during the years at

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

Petitioner introduced no evidence of the total support furnished

for each of his sons from all sources for either of the years at

issue.   Moreover, it appears from the judgment of the Superior
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Court of California in County of Santa Clara v. Daniels, supra,

that petitioner failed to pay child support for his three sons

from 1993 through 1999, and that the County provided support

payments to the children’s caretakers.    The payments by the

County do not constitute support by petitioner.     Lutter v.

Commissioner, 61 T.C. 685 (1974), affd. 514 F.2d 1095 (7th Cir.

1975).    Accordingly, respondent’s determination that none of

petitioner’s three sons is his dependent for section 151 purposes

for the taxable years is sustained.

Issue 3.     Earned Income Credit

     Petitioner claimed the earned income credit for 1997 and

1998.    Section 32(a)(1) allows an eligible individual an earned

income credit against the individual’s income tax liability.     An

eligible individual is any individual who either:    (1) Has a

qualifying child as defined by section 32(c)(3)(A), or (2) has no

qualifying child and meets the requirements of section

32(c)(1)(A)(ii).

     A taxpayer must satisfy the requirements of section 32(c)(3)

in order to be entitled to the earned income credit for a

qualifying child.    Section 32(c)(3)(A)(i) requires that the

individual bear the relationship to petitioner prescribed by

section 32(c)(3)(B).    Section 32(c)(3)(B)(i)(I) provides that an

individual bears the required relationship to the taxpayer if he

or she is, among other things, a son or daughter of the taxpayer.
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Section 32(c)(3)(A)(ii) requires that the child share the same

principal place of abode as the taxpayer for more than one-half

the taxable year.    Section 32(c)(3)(A)(iii) requires that the

child meet the age requirements of subparagraph (C).    Section

32(c)(3)(C) provides that a child meets the age requirement if he

or she has not attained the age of 19 as of the close of the

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

     Jeremy and Jamar satisfy the age and relationship tests of

section 32(c)(3).3   However, petitioner has offered no evidence

to establish that either Jeremy or Jamar shared petitioner’s

residence for more than one-half of 1997 or 1998.    Petitioner has

not established that he is entitled to the earned income credit

for 1997 or 1998 on the ground of having any qualifying children

under section 32(c)(3).

     An individual with no qualifying children is eligible for

the earned income credit, subject to the phaseout limitations of

section 32(a)(2), if the individual’s principal place of abode is

in the United States for more than one-half of the taxable year,

the individual has attained the age of 25 but not the age of 65,

and is not a dependent for whom a deduction is allowable under

section 151.   Sec. 32(c)(1)(A).   Petitioner meets the residency


     3
      Only two qualifying children need be shown on the
taxpayer’s return in order for the taxpayer to be entitled to the
maximum credit. Sec. 32(b). Petitioner showed the names of
Jeremy and Jamar on his returns for this purpose.
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and age requirements of section 32(c)(1)(A), but is subject to

the phaseout limitations of section 32(a)(2).

     For the 1997 tax year, the earned income credit is

completely phased out under section 32(a)(2) for an individual

with no qualifying children if the taxpayer’s earned income and

adjusted gross income is over $9,769.    Petitioner’s earned income

and adjusted gross income was $21,994 in 1997.   Petitioner is

therefore not entitled to the earned income credit for the 1997

tax year.   For the 1998 tax year, the earned income credit is

completely phased out under section 32(a)(2) for an individual

with no qualifying children if the taxpayer’s earned income and

adjusted gross income exceeds $10,029.   Petitioner’s earned

income and adjusted gross income in 1998 was $18,479.   Petitioner

is therefore not entitled to the earned income credit for the

1998 tax year.

     At trial, petitioner made no offer of proof of any relevant

facts that would tend to support his claims.    His brief contains

no legal arguments that would have any bearing on the outcome,

much less tend to support any of his claims.    In Briggsdaniels v.

Commissioner, T.C. Memo. 2000-105, affd. without published

opinion 248 F.3d 1169 (9th Cir. 2001), we entered decision

sustaining respondent’s determinations that petitioner was not

entitled to head of household filing status, dependency

deductions, or the earned income credit for the taxable years
                                 - 8 -

1995 and 1996; the Court of Appeals for the Ninth Circuit

affirmed our decision.

     Section 6673(a)(1)(A) and (B) allows the Tax Court to

require a taxpayer to pay to the United States a penalty of up to

$25,000 when a taxpayer institutes or maintains a proceeding

primarily for delay, or where the taxpayer’s position in the

proceeding is frivolous or groundless.   The record in this case

shows no warning to petitioner from respondent or the Court that

his conduct in maintaining this proceeding might subject him to a

penalty under section 6673(a).    Respondent made no motion for a

penalty herein under section 6673(a) against petitioner, and this

case is not such a case that we would impose a section 6673(a)

penalty on our own motion.

     We do take this occasion to inform petitioner that Courts of

Appeals have their own sanctioning power to deal with frivolous

appeals.   Sec. 7482(c); 28 U.S.C. sec. 1912 (1994); Fed. R. App.

P. 38.   The Court of Appeals for the Ninth Circuit, to which this

case would be appealable, has not hesitated to use its power to

order sanctions under these provisions against taxpayer-

appellants in appropriate cases.    See, e.g., Smith v.

Commissioner, 800 F.2d 930, 936 (9th Cir. 1986), affg. T.C. Memo.

1984-661; Colton v. Gibbs, 902 F.2d 1462, 1464 (9th Cir. 1990);

Trohimovich v. Commissioner, 776 F.2d 873, 875-876 (9th Cir.

1985).
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To reflect the foregoing,


                                    Decision will be entered for

                            respondent.
