                  T.C. Summary Opinion 2002-37



                     UNITED STATES TAX COURT



             STEVEN GENORIS WILKERSON, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent


     Docket No. 8121-01S.               Filed April 8, 2002.


     Steven Genoris Wilkerson, pro se.

     Kenneth L. Bressler, for respondent.



     COUVILLION, Special Trial Judge:    This case was heard

pursuant to section 7463 in effect when the petition was filed.1

The decision to be entered in this case is not reviewable by any

other Court, and this opinion should not be cited as authority.

     Respondent determined a deficiency in petitioner's Federal

income tax in the amount of $3,144 for 2000.


     1
          Unless otherwise indicated, section references
hereafter are to the Internal Revenue Code in effect for the year
at issue.
                                - 2 -


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

entitled to a claimed dependency exemption deduction under

section 151; (2) whether petitioner is entitled to head-of-

household filing status under section 2(b); (3) whether

petitioner is entitled to the earned income credit under section

32(a); and (4) whether petitioner is entitled to the child care

credit under section 21.

     Some of the facts were stipulated.    Those facts, with the

exhibits annexed thereto, are so found and are made part hereof.

Petitioner's legal residence at the time the petition was filed

was Dallas, Texas.

     On his Federal income tax return for 2000, petitioner

claimed a dependency exemption deduction for a child, Christopher

Simon (Christopher), who was identified on the return as

petitioner's son.    Petitioner also claimed an earned income

credit and a child care credit based on Christopher as the

qualifying person.    Finally, petitioner claimed head-of-household

filing status.   In the notice of deficiency, respondent

determined that petitioner was not entitled to the claimed

dependency exemption deduction, that Christopher was not a

qualifying child for purposes of the claimed earned income and

child care credits, and that petitioner's filing status was

single rather than head-of-household.
                                 - 3 -


     The claimed dependent, Christopher, was born on April 21,

1987.   His birth certificate, which was offered into evidence,

does not list a father.    The mother listed on the certificate is

Sonja Michelle Simon.

     Petitioner was never legally married to Sonja Michelle

Simon, although the two had lived together for several years and

had one son, who was not claimed by petitioner as a dependent on

the tax return at issue in this case.    At the time Christopher

was born, petitioner and Sonja Michelle Simon were no longer

living together.   However, petitioner claims his entitlement to

the dependency exemption for Christopher and the related credits

based on his relationship with Sonja Michelle Simon, which he

described at trial as follows:


          THE WITNESS: We're common-law married and have been
     since I was 16. We have one son together and Christopher
     came along after we broke up.

           THE COURT:   So you're not the father of Christopher?

          THE WITNESS: I couldn't tell you that. I never
     pursued it. As I told the attorney, I didn't pursue a blood
     test or any of that. I just claim he is my stepson. And I
     take care of him. Because the person that she's saying is
     his father is nowhere in the picture. So I take care of him
     like I take care of my son.


     During 2000, petitioner lived with his mother in a house

owned by petitioner's brother.    The rent for use of the house was

the amount of the monthly mortgage payment, which was $750 per
                                - 4 -


month.    Petitioner contends he paid $300 per month for his part

of the rent and paid one of the utility bills each month,

including some amount for food.   The remainder was paid by his

mother.    Christopher did not live with petitioner on a full-time

basis, which petitioner acknowledges.     Petitioner testified that

Christopher was "in and out of the house" throughout the year and

estimated that Christopher lived with him, on this basis, for at

least 6 months of the year.   No documentary evidence was

submitted establishing the exact amount of time Christopher lived

with petitioner during 2000, nor was any evidence presented to

establish the amount of support petitioner provided to

Christopher during the year, as well as the amount of support

provided by others, including petitioner's mother and the child's

mother, and any other outside sources.

     Section 151(c) allows taxpayers to deduct an annual

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 taxable year in which such individuals are

claimed as dependents.    Eligible individuals who may be claimed

as dependents include, among others, a son or stepson of the

taxpayer.   See sec. 152(a)(1) and (2).   If a claimed dependent is

not within the category of relationships listed in section

152(a)(1) through (8), section 152(a)(9) provides generally that
                                - 5 -


an individual may nevertheless qualify as a dependent if such

individual, for the entire taxable year, had "as his principal

place of abode the home of the taxpayer and is a member of the

taxpayer's household."    Sec. 152(a)(9); sec. 1.152-1(b), Income

Tax Regs.    Also, a foster child is treated as a child of the

taxpayer if the child satisfies the requirements of section

152(a)(9).   Sec. 152(b)(2).

     Section 1.152-1(a)(2)(i), Income Tax Regs., provides that,

in determining whether an individual received over half of his

support from the taxpayer, "there shall be taken into account the

amount of support received from the taxpayer as compared to the

entire amount of support which the individual received from all

sources, including support which the individual himself

supplied."   In Blanco v. Commissioner, 56 T.C. 512, 514-515

(1971), this Court held that, in establishing that more than one-

half of a dependent's support has been provided, a prerequisite

to such a showing is the demonstration by competent evidence of

the total amount of the dependent's support from all sources for

that year.   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 the exemption provided more than one-half of the support

of the claimed dependent.
                                - 6 -


     The Court is not satisfied from the evidence that petitioner

provided more than half of the support for Christopher during the

year at issue.    Petitioner presented no evidence to show the

total support that was provided to the child during 2000 and the

amount he provided to establish that such amount met the one-half

threshold required under section 152(a).    Moreover, the evidence

does not satisfy the Court that Christopher was petitioner's son

or stepson.    Although section 152(a)(9) allows a dependency

exemption for a person who is not a child or other allowed

relative of the taxpayer, that provision requires as a condition

for the dependency exemption that the claimed dependent, for the

entire taxable year, had as his principal place of abode the home

of the taxpayer and was a member of the taxpayer's household.

Petitioner's evidence does not satisfy the Court that Christopher

was a member of petitioner's household or had his principal place

of abode with petitioner for the year 2000.    Likewise,

Christopher does not qualify as a foster son pursuant to section

152(b)(2).    The Court, therefore, sustains respondent on the

dependency question.

     Section 2(b) provides generally that an individual shall be

considered a head-of-household if, among other requisites not

pertinent here, such individual maintains as his home a household

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

principal place of abode, as a member of such household, of an
                                - 7 -


unmarried son or stepson of the taxpayer, or of any other person

who is a dependent of the taxpayer if the taxpayer is entitled to

a dependency exemption deduction for such person under section

151.    See sec. 2(b)(1)(A)(i) and (ii).   In the preceding

discussion, the Court found that petitioner had not established

that Christopher was his son or stepson, nor had petitioner

established that he had provided more than half of Christopher's

support during 2000, as a result of which, petitioner was not

entitled to the dependency exemption deduction for Christopher.

Consequently, petitioner is not eligible for head-of-household

filing status for 2000.    Respondent is sustained on this issue.

       Section 32(a) provides for an earned income credit in the

case of an eligible individual.    Section 32(c)(1)(A), in

pertinent part, defines an "eligible individual" as an individual

who has a qualifying child for the taxable year.     Sec.

32(c)(1)(A)(i).    A qualifying child is one who satisfies a

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

identification requirement.    Sec. 32(c)(3).   To satisfy the

residency test, the qualifying child must have the same principal

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

taxable year in which the credit is claimed.     Sec.

32(c)(3)(A)(ii).    The record does not establish that petitioner's

home was the principal place of abode for Christopher for more

than one-half of the 2000 tax year.     Moreover, since petitioner
                               - 8 -


did not establish that Christopher was his son or stepson, the

only other possibility for petitioner to claim the credit would

be to establish that Christopher was his foster child.

Christopher, however, would not qualify as a foster child of

petitioner because, under section 32(c)(3)(B)(iii)(I), (III),

Christopher was not placed with petitioner by an authorized

placement agency, and Christopher did not have the same principal

place of abode as petitioner for the entire taxable year.

Petitioner, therefore, is not entitled to the earned income

credit.   Respondent is sustained on this issue.2

     Section 21(a) generally provides for what is sometimes

referred to as the child care credit, which is a credit against

the tax and is allowed to an individual who maintains a household

that includes as a member one or more qualifying individuals.

The term "qualifying individual", under section 21(b)(1),

includes a dependent of the taxpayer under age 13, with respect

to whom the taxpayer is entitled to a dependency deduction under

section 151(c).   The allowable credit, under section 21(b)(2),

generally is based upon employment-related expenses that are



     2
          Sec. 32(c)(1)(A)(ii) allows the earned income credit to
a taxpayer who does not have a qualifying child. However, in
order for a taxpayer to be eligible for a credit pursuant to sec.
32(c)(1)(A)(ii), his adjusted gross income must not exceed the
limitations of sec. 32(a). In this case, with no qualifying
children, petitioner's earned income exceeded the phaseout amount
provided in sec. 32(b)(2).
                               - 9 -


incurred to enable the taxpayer to be gainfully employed,

including expenses incurred for the care of a qualifying

individual.   Since petitioner is not entitled to the dependency

exemption for Christopher, he is not entitled to the child care

credit.

     Reviewed and adopted as the report of the Small Tax Case

Division.



                                            Decision will be entered

                                       for respondent.
