                               T.C. Memo. 2014-56



                         UNITED STATES TAX COURT



       ARTEM SERGIENKO AND STEPHANIE CORONA, Petitioners v.
         COMMISSIONER OF INTERNAL REVENUE, Respondent



      Docket No. 11923-12.                          Filed April 1, 2014.



      Artem Sergienko and Stephanie Corona, pro sese.

      Trent D. Usitalo and Bryant W.H. Smith, for respondent.



            MEMORANDUM FINDINGS OF FACT AND OPINION


      CHIECHI, Judge: Respondent determined a deficiency of $4,050 in peti-

tioners’ Federal income tax (tax) for their taxable year 2010.

      The issues for decision for petitioners’ taxable year 2010 are:
                                         -2-

[*2] (1) Are petitioners entitled to a dependency exemption deduction under

section 151(a)1 for the daughter of petitioner Stephanie Corona? We hold that

they are not.

      (2) Are petitioners entitled to the additional child tax credit under section

24(d) with respect to the daughter of petitioner Stephanie Corona? We hold that

they are not.

      (3) Are petitioners entitled to the earned income tax credit under section

32(a) with respect to the daughter of petitioner Stephanie Corona? We hold that

they are not.

                               FINDINGS OF FACT

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

      Petitioners resided in California at the time they filed the petition.

      At a time not established by the record, petitioner Stephanie Corona (Ms.

Corona) married Jesus A. Garcia (Mr. Garcia). Ms. Corona and Mr. Garcia were

separated in January 2008 and divorced on July 31, 2009. During their marriage,

Ms. Corona and Mr. Garcia had a daughter, AIG.




      1
        All section references are to the Internal Revenue Code in effect for the
year at issue. All Rule references are to the Tax Court Rules of Practice and
Procedure.
                                        -3-

[*3] On July 31, 2009, the Superior Court of California, County of San Joaquin

(San Joaquin County Superior Court), entered a judgment of dissolution (dissolu-

tion judgment) dissolving the marriage between Ms. Corona and Mr. Garcia. The

dissolution judgment provided as follows with respect to custody of, and visitation

with, AIG: “Joint legal custody to Petitioner [Ms. Corona] and Respondent [Mr.

Garcia]; Shared Physical Custody awarded to Petitioner and Respondent. Parent-

ing time is by agreement.”

      In September 2009, Ms. Corona married petitioner Artem Sergienko.

      On December 1, 2009, Mr. Garcia filed in the San Joaquin County Superior

Court (1) a notice of motion for modification of visitation (Mr. Garcia’s motion)

and (2) a declaration (Mr. Garcia’s declaration) in support of Mr. Garcia’s motion.

In Mr. Garcia’s motion, Mr. Garcia requested modification of the dissolution judg-

ment with respect to visitation with AIG. Mr. Garcia’s declaration stated in perti-

nent part:

            My name is Jesus A. Garcia; I am requesting a modification of
      my last court order submitted on 7/31/2009, “As parties agree” re-
      garding my daughter * * * [AIG]. At that point in time of the order,
      Stephanie N Corona (Mother) and my self had been separated for
      some time before the “agreement”. The agreement had been working
      out well between us. We had fair communication and were able to
      come to an agreement regarding visitations. However at this time I
      have some concerns and would like to address the issues. However I
      do not believe Stephanie and I can come to an agreement at this time.
                                        -4-

[*4]          I am finding it to be difficult to communicate with Stephanie
       and come to an agreement on visitation hours, pick up and drop off
       locations. We have not been able to talk and do not agree many
       times. I find my self in difficult situations while working to accom-
       modate last minute arrangements by Stephanie. I have other issues I
       would like to address such as holidays, contact information, primary
       doctor, influencing * * * [AIG], and schools.

              We have both moved on as we are both in a different relation-
       ship. Stephanie has recently informed me she has remarried and
       currently lives out of town. I would like to come to an agreement
       before this situation gets out of hand. I am concerned for our daugh-
       ter as she does not quite understand but is aware of issues we are
       having.

       On January 22, 2010, Mr. Garcia filed in the San Joaquin County Superior

Court a supplemental declaration (Mr. Garcia’s supplemental declaration) in

support of Mr. Garcia’s motion. Mr. Garcia’s supplemental declaration stated in

pertinent part:

              1. Petitioner Stephanie Corona and I have one child together,
       * * * [AIG] * * *. On July 31, 2009 a Judgment of Dissolution of
       Marriage was entered which provided that Petitioner and I were to
       have joint legal and shared physical custody of our daughter with
       specific parenting time to be determined by agreement. Since that
       time, Petitioner and I have shared parenting time of our daughter on
       an essentially equal basis. However, this past fall I became involved
       in a serious relationship and Petitioner began preventing me from see-
       ing * * * [AIG]. This occurred until I filed a modification motion on
       December 1, 2009. Petitioner’s unilateral and unjustified decision to
       permit me from seeing our daughter for several weeks this fall further
       encouraged me to seek a modification of the current order such that
       we have a defined parenting schedule.
                                        -5-

[*5] On April 2, 2010, the San Joaquin County Superior Court issued an order

(April 2, 2010 order) in which that court modified the dissolution judgment, inter

alia, by establishing a fixed visitation schedule for Mr. Garcia and Ms. Corona

with respect to AIG. Pursuant to the April 2, 2010 order, visitation with AIG was

to occur in “7 day blocks of time with the exchanges on Sunday at 7:45 pm”, with

Ms. Corona’s first block of visitation time commencing on February 7, 2010, and

Mr. Garcia’s first block of visitation time commencing on February 14, 2010.2

      Petitioners jointly filed Form 1040A, U.S. Individual Income Tax Return,

for their taxable year 2010. In that return, petitioners reported total income of

$17,531 and claimed, inter alia, (1) a dependency exemption deduction for AIG,

(2) the additional child tax credit with respect to AIG, and (3) the earned income

tax credit with respect to AIG.

      Respondent issued to petitioners a notice of deficiency (notice) for their

taxable year 2010. In that notice, respondent disallowed petitioners’ claimed

(1) dependency exemption deduction for AIG, (2) additional child tax credit with

respect to AIG, and (3) earned income tax credit with respect to AIG.




      2
        In the April 2, 2010 order, the San Joaquin County Superior Court also
established a holiday visitation schedule that was to “supersede all other custody
periods” for certain specified holidays.
                                           -6-

[*6]                                   OPINION

       Petitioners bear the burden of establishing that the determinations in the

notice are erroneous. See Rule 142(a); Welch v. Helvering, 290 U.S. 111, 115

(1933).

Dependency Exemption Deduction

       It is petitioners’ position that they are entitled for their taxable year 2010 to

a dependency exemption deduction under section 151(a) for AIG. Respondent

disagrees.

       Section 151(a) provides that “the exemptions provided by this section shall

be allowed as deductions” to a taxpayer. Section 151(c) provides an exemption

for each dependent of the taxpayer, as defined in section 152. Section 152(a)

defines the term “dependent” to mean a qualifying child, see sec. 152(a)(1), or a

qualifying relative, see sec. 152(a)(2).

       Section 152(c) defines the term “qualifying child” as follows:

       SEC. 152. DEPENDENT DEFINED.

             (c) Qualifying Child.--For purposes of this section--

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

                          (A) who bears a relationship to the taxpayer
                    described in paragraph (2),
                                         -7-

[*7]                       (B) who has the same principal place of abode as
                    the taxpayer for more than one-half of such taxable year,

                           (C) who meets the age requirements of paragraph
                    (3),

                           (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, and

                          (E) who has not filed a joint return (other than
                    only for a claim of refund) with the individual’s spouse
                    under section 6013 for the taxable year beginning in the
                    calendar year in which the taxable year of the taxpayer
                    begins.

       As pertinent here, an individual satisfies the relationship requirement in

section 152(c)(1)(A) if that individual is a child3 of the taxpayer. Sec.

152(c)(2)(A). As pertinent here, an individual satisfies the age requirement in

section 152(c)(1)(C) if that individual is under age 19 as of the close of the

calendar year in which the taxpayer’s taxable year begins. Sec. 152(c)(3)(A)(i).

       The parties do not dispute that AIG satisfies the relationship requirement in

section 152(c)(1)(A), the age requirement in section 152(c)(1)(C), the support

requirement in section 152(c)(1)(D), and the joint return requirement in section




       3
       As pertinent here, sec. 152(f)(1) defines the term “child” for purposes of
sec. 152 to mean either “a son, daughter, stepson, or stepdaughter of the taxpayer”.
Sec. 152(f)(1)(A)(i).
                                          -8-

[*8] 152(c)(1)(E). They disagree as to whether AIG satisfies the principal place of

abode requirement in section 152(c)(1)(B).

         Petitioners argue that AIG satisfies the principal place of abode requirement

in section 152(c)(1)(B). That is because, according to petitioners, AIG resided

with them more than she resided with Mr. Garcia during the period that began on

January 1, 2010, and that ended on April 2, 2010, when the San Joaquin County

Superior Court issued the April 2, 2010 order.

         In support of petitioners’ argument that AIG satisfies the principal place of

abode requirement in section 152(c)(1)(B), petitioners rely on (1) their respective

testimonies, (2) Mr. Garcia’s supplemental declaration, and (3) the April 2, 2010

order.

         As for the respective testimonies of petitioners, we found those testimonies

to be in certain material respects not credible and inconsistent. We shall not rely

on the respective testimonies of petitioners to establish petitioners’ argument that

AIG satisfies the principal place of abode requirement in section 152(c)(1)(B).

See, e.g., Tokarski v. Commissioner, 87 T.C. 74, 77 (1986).

         As for Mr. Garcia’s supplemental declaration, that supplemental declaration

states that “this past fall I became involved in a serious relationship and Petitioner

[Ms. Corona] began preventing me from seeing * * * [AIG].” However, Mr.
                                         -9-

[*9] Garcia’s supplemental declaration further states that Ms. Corona prevented

Mr. Garcia from seeing AIG only “until I filed a modification motion [Mr.

Garcia’s motion] on December 1, 2009.” Consequently, Mr. Garcia’s

supplemental declaration does not establish (1) that AIG resided with petitioners

more than she resided with Mr. Garcia during the period that began on January 1,

2010, and that ended on April 2, 2010, and (2) that therefore AIG satisfies the

principal place of abode requirement in section 152(c)(1)(B).

      As for the April 2, 2010 order, that order does not establish that AIG resided

with petitioners more than she resided with Mr. Garcia during the period that be-

gan on January 1, 2010, and that ended on April 2, 2010. Therefore, that order

does not establish that AIG satisfies the principal place of abode requirement in

section 152(c)(1)(B).

      On the record before us, we find that petitioners have failed to carry their

burden of establishing that for their taxable year 2010 AIG satisfies the principal

place of abode requirement in section 152(c)(1)(B). On that record, we further

find that petitioners have failed to carry their burden of establishing that for their

taxable year 2010 (1) AIG is their qualifying child, as defined in section 152(c),

and (2) that therefore she is their dependent, as defined in section 152(a)(1).
                                         - 10 -

[*10] Based upon our examination of the entire record before us, we find that

petitioners have failed to carry their burden of establishing that they are entitled

for their taxable year 2010 to a dependency exemption deduction under section

151(a) for AIG.

Additional Child Tax Credit

      It is petitioners’ position that they are entitled for their taxable year 2010 to

the additional child tax credit under section 24(d) with respect to AIG. Respon-

dent disagrees.

      Section 24(a) provides a credit with respect to each qualifying child of the

taxpayer. As pertinent here, section 24(c)(1) defines the term “qualifying child” as

“a qualifying child of the taxpayer (as defined in section 152(c)) who has not

attained age 17.”

      The child tax credit provided by section 24(a) may not exceed the taxpay-

er’s regular tax liability. Where a taxpayer is eligible for the child tax credit, but

the taxpayer’s regular tax liability is less than the amount of the child tax credit

potentially available under section 24(a), section 24(d) makes a portion of the

credit, known as the additional child tax credit, refundable.

      We have found that petitioners have failed to carry their burden of estab-

lishing that for their taxable year 2010 AIG is their qualifying child, as defined in
                                         - 11 -

[*11] section 152(c). On the record before us, we find that petitioners have failed

to carry their burden of establishing that for their taxable year 2010 AIG is their

qualifying child, as defined in section 24(c)(1).

      Based upon our examination of the entire record before us, we find that

petitioners have failed to carry their burden of establishing that they are entitled

for their taxable year 2010 to the additional child tax credit under section 24(d)

with respect to AIG.

Earned Income Tax Credit

      It is petitioners’ position that they are entitled for their taxable year 2010 to

the earned income tax credit under section 32(a) with respect to AIG. Respondent

disagrees.

      Section 32(a)(1) permits an eligible individual an earned income credit

against that individual’s tax liability.4 As pertinent here, the term “eligible indivi-

dual” is defined to mean “any individual who has a qualifying child for the taxable

year”. Sec. 32(c)(1)(A)(i). As pertinent here, section 32(c)(3)(A) defines the term




      4
        The amount of the credit is determined on the basis of percentages that vary
depending on whether the taxpayer has one qualifying child, two or more qualify-
ing children, or no qualifying children. See sec. 32(b). The credit is also subject
to a limitation based on adjusted gross income. See sec. 32(a)(2).
                                        - 12 -

[*12] “qualifying child” to mean “a qualifying child of the taxpayer (as defined in

section 152(c) * * * ).”

        We have found that petitioners have failed to carry their burden of estab-

lishing that for their taxable year 2010 AIG is their qualifying child, as defined in

section 152(c). On the record before us, we find that petitioners have failed to

carry their burden of establishing that for their taxable year 2010 AIG is their

qualifying child, as defined in section 32(c)(3)(A).

        Based upon our examination of the entire record before us, we find that

petitioners have failed to carry their burden of establishing that they are entitled

for their taxable year 2010 to the earned income tax credit under section 32(a) with

respect to AIG.5

        We have considered all of the contentions and arguments of the parties that

are not discussed herein, and we find them to be without merit, irrelevant, and/or

moot.




        5
        Petitioners do not claim that either of them is an eligible individual, as
defined in sec. 32(c)(1)(A)(ii), for their taxable year 2010. Even if they had made
that claim, the record establishes that petitioners were both born in 1987. As a
result, petitioners do not satisfy the age requirements of sec. 32(c)(1)(A)(ii)(II),
which each of them must satisfy, among other requirements, in order to qualify as
an eligible individual, as defined in sec. 32(c)(1)(A)(ii).
                                  - 13 -

[*13] To reflect the foregoing,


                                           Decision will be entered for

                                  respondent.
