                          T.C. Memo. 2003-160



                        UNITED STATES TAX COURT



    ETTA JANE LINTON, a.k.a. ELLA JANE LINTON, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 7147-02.                Filed June 2, 2003.


     Etta Jane Linton, pro se.

     Dennis R. Onnen and James E. Cannon, for respondent.



                MEMORANDUM FINDINGS OF FACT AND OPINION


     MARVEL, Judge:     Respondent determined a deficiency in

petitioner’s 2000 Federal income tax of $4,037.1    The issues for

decision are:    (1) Whether petitioner is entitled to head of




     1
      This deficiency is subject to a prepayment credit
adjustment of $3,210.96.
                                - 2 -

household filing status under section 2(b);2 (2) whether

petitioner is entitled to claim dependency exemptions under

section 151(c) for her two sons; and (3) whether petitioner is

entitled to an earned income credit under section 32(a).

                           FINDINGS OF FACT

     Some of the facts have been stipulated.    We incorporate the

stipulated facts and accompanying exhibits into our findings by

this reference.   Petitioner resided in Albuquerque, New Mexico,

at the time of filing the petition.

     Petitioner has two sons, Frankie L. Linton (Frankie) and

Avery L. Linton (Avery).    During the taxable year at issue,

Frankie and Avery resided with foster parents.3   Frankie and

Avery visited with petitioner approximately two times a week but

did not stay overnight at petitioner’s home.    Petitioner paid for

meals during Frankie and Avery’s visits but did not routinely pay

for their groceries.

     On her Form 1040A, U.S. Individual Income Tax Return,

petitioner claimed head of household filing status and claimed

dependency exemptions for Frankie and Avery.    Petitioner also

claimed an earned income credit and attached Schedule EIC, Earned



     2
      All 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.
     3
      The State of New Mexico Children, Youth and Families
Department had legal custody of Frankie and Avery at this time.
                                 - 3 -

Income Credit (Qualifying Child Information), listing Frankie and

Avery as qualifying children.

     On January 25, 2002, respondent mailed to petitioner a

notice of deficiency.   In the notice of deficiency, respondent

disallowed the claimed dependency exemptions for Frankie and

Avery and the claimed earned income tax credit.   Additionally,

respondent determined that petitioner’s filing status was single.

     On April 10, 2002, petitioner filed a timely petition

contesting respondent’s determinations.4   This proceeding

followed.

                                OPINION

     Respondent contends that petitioner is not entitled to claim

head of household filing status or the earned income credit

because Frankie and Avery resided in a foster home throughout the

year at issue.   Respondent also contends that petitioner did not

provide more than one-half of Frankie and Avery’s support and,

therefore, is not entitled to claim dependency exemptions for

Frankie and Avery.

     Respondent’s determinations are presumed correct, and


     4
      Although respondent’s notice of deficiency dealt solely
with petitioner’s income tax liabilities for the taxable year
2000, petitioner disputed her income tax liabilities for 1998,
1999, and 2000. On June 14, 2002, respondent filed a Motion to
Dismiss for Lack of Jurisdiction and To Strike as to Taxable
Years 1998 and 1999. This Court granted respondent’s motion by
order dated Sept. 5, 2002, dismissing the case as to the taxable
years 1998 and 1999 and striking references to those years from
the petition.
                                   - 4 -

petitioner bears the burden of proof.5      Rule 142(a)(1); Welch v.

Helvering, 290 U.S. 111, 115 (1933).       Moreover, deductions and

tax credits are a matter of legislative grace, and petitioner

must clearly demonstrate her entitlement to the claimed

deductions and tax credit.       INDOPCO, Inc. v. Commissioner, 503

U.S. 79, 84 (1992); Segel v. Commissioner, 89 T.C. 816, 842

(1987).

I.   Head of Household Filing Status

        Section 2(b) contains the requirements for head of household

filing status.       Section 2(b)(1)(A)(i) provides that if a taxpayer

is unmarried at the end of the taxable year, is not a surviving

spouse, and maintains6 as the taxpayer’s home a household that

constitutes for more than one-half of the taxable year the

principal place of abode of the taxpayer’s child, the taxpayer

may then claim head of household filing status.

     Although petitioner was not married and was not a surviving

spouse at the end of the taxable year at issue, petitioner did

not maintain a household that constituted Frankie’s or Avery’s

principal place of abode for more than one-half of the taxable

year.       In fact, during the entire year, Frankie and Avery resided


        5
      Petitioner has not satisfied the requirements of sec.
7491(a), and, consequently, sec. 7491(a) does not shift the
burden of proof to respondent.
        6
      According to sec. 2(b)(1), a taxpayer “maintains” the
household if the taxpayer contributes over half of the household
maintenance costs.
                                  - 5 -

in the home of their foster parents.      Accordingly, we conclude

that petitioner is not entitled to head of household filing

status.

II.    Dependency Exemptions

       A taxpayer may claim exemptions for individuals who qualify

as the taxpayer’s dependents.     Sec. 151(a), (c)(1).   Section

152(a)(1) includes a taxpayer’s children as dependents if the

taxpayer provided over half of their support during the calender

year.

       Petitioner testified at trial that she occasionally bought

food, clothes, school supplies, and toys for Frankie and Avery.

Petitioner did not introduce any documentary evidence in support

of her testimony.    Even assuming that petitioner’s

unsubstantiated testimony correctly accounts for her

contributions toward Frankie and Avery’s support, petitioner

clearly did not provide over half of their support as required by

section 152(a).    We therefore sustain respondent’s determination

that petitioner is not entitled to claim dependency exemptions

for her two sons.

III.    Earned Income Credit

       Section 32(a)(1) provides an income tax credit, subject to

limitation by section 32(a)(2), for taxpayers who satisfy certain

eligibility requirements.      Pursuant to section 32(c)(1)(A)(i), a

taxpayer is eligible for the earned income credit if the taxpayer
                                 - 6 -

has a “qualifying child”.    A “qualifying child” includes a

taxpayer’s son or daughter who shares the taxpayer’s principal

place of abode for more than one-half of the taxable year and who

meets certain age requirements.    Sec. 32(c)(3)(A) and (B)(i)(I).

     Frankie and Avery did not share petitioner’s principal place

of abode at any time during the taxable year and, as a result,

are not qualifying children for purposes of section

32(c)(1)(A)(i).     Accordingly, we conclude that because petitioner

has no qualifying children and is not otherwise eligible for the

earned income credit,7 petitioner is not entitled to claim an

earned income credit.

     We have considered the remaining arguments of both parties

for results contrary to those expressed herein and, to the extent

not discussed above, find those arguments to be irrelevant, moot,

or without merit.

     To reflect the foregoing,

                                              Decision will be entered

                                         for respondent.




     7
      A taxpayer without a qualifying child may be eligible for
the earned income credit pursuant to sec. 32(c)(1)(A)(ii).
Though petitioner satisfies the three requirements of sec.
32(c)(1)(A)(ii), petitioner’s adjusted gross income is too high
for purposes of claiming an earned income credit in the absence
of two or more qualifying children. See sec. 32(a)(2) and (b).
