                        T.C. Memo. 2004-165



                     UNITED STATES TAX COURT



                  MARY J. TONEY, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 5331-03.                Filed July 13 2004.


     Mary J. Toney, pro se.

     Daniel N. Price, for respondent.



             MEMORANDUM FINDINGS OF FACT AND OPINION


     THORNTON, Judge:   Respondent determined a $4,321 deficiency

in petitioner’s 2001 Federal income tax.   By amended answer,

respondent asserted an additional $113 deficiency.   The issues

for decision are whether petitioner was eligible to file her 2001

Federal income tax return as a head of household and whether she

was entitled to claim dependency exemption deductions pursuant to
                                 - 2 -

section 151(a) and an earned income credit (EIC) pursuant to

section 32(a).1

                           FINDINGS OF FACT

     The parties have stipulated some facts, which we incorporate

herein by this reference.    When she petitioned the Court,

petitioner resided in San Antonio, Texas.

     Throughout 2001, petitioner was married to John R. Toney Sr.

(Mr. Toney).    The Toneys have four children.

     For part of 2001, petitioner was unemployed.     She and her

children lived with her mother.     Petitioner’s mother and an

unrelated person provided some support to petitioner’s children.

Petitioner admits that during 2001 she did not provide over half

the support for her children and that Mr. Toney provided no

support for the children.

     Petitioner filed her 2001 Federal income tax return as head

of household.     On the return, she claimed her four children as

dependents and claimed an EIC.

     By notice of deficiency, respondent determined that

petitioner was not entitled to claim her children as dependents;

that she was not entitled to claim the EIC; and that her proper

filing status was single.    By amended answer, respondent asserted



     1
       Unless otherwise indicated, 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.
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that petitioner’s proper filing status was married filing

separately, resulting in an increase in the asserted deficiency.2

                               OPINION

1.   Dependency Exemption Deductions

     A taxpayer is allowed a dependency exemption deduction for

each “dependent”.    Sec. 151(a), (c).   To be considered a

taxpayer’s dependent, an individual generally must receive over

half of his or her support from the taxpayer during the taxable

year.    Sec. 152(a).

     Petitioner admits that during 2001 she did not provide over

half of her children’s support.    Accordingly, petitioner is not

entitled to claim her children as dependents for 2001.3

2.   Filing Status

     To qualify as a head of household, an individual must be

unmarried at the close of the taxable year.     Sec. 2(b)(1).   It is


     2
       Respondent has the burden of proof as to any increase in
deficiency that is pleaded in his answer. Rule 142(a). Because
our resolution of the issues in this case does not hinge on which
party bears the burden of proof, we need not further address the
application of Rule 142(a) or the applicability of sec. 7491.
     3
       Sec. 152(e)(1) treats a child as receiving over half his
support from his custodial parent, if his parents live apart at
all times during the last 6 months of the calendar year and
provide over half the child’s support for that year. Even if we
were to assume that petitioner and Mr. Toney lived apart at all
times during the last 6 months of 2001, the provisions of sec.
152(e)(1) are inapplicable: because petitioner did not provide
over half of her children’s support during 1991 and Mr. Toney
provided no support, the threshold requirement of sec. 152(e)(1)
that the parents provide over half the children’s support is
unsatisfied.
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undisputed that petitioner was married to Mr. Toney at the close

of 2001.

     Under certain circumstances, in determining proper filing

status, a married taxpayer may be treated as unmarried.          Secs.

2(c), 7703(b).   To qualify for this treatment, the taxpayer must,

among other things, provide over half the cost of maintaining a

household that is the principal place of abode for a child who

qualifies as the taxpayer’s dependent (subject to certain

exceptions not relevant here).    Sec. 7703(b)(1).     As previously

discussed, petitioner’s children do not qualify as her dependents

for 2001.   Accordingly, petitioner cannot be treated as unmarried

pursuant to section 7703(b), and petitioner’s proper filing

status for 2001 is married filing separately.

3.   Earned Income Credit

     To be eligible to claim an EIC, a married individual

generally must file a joint return (or else satisfy the section

7703(b) requirements to be treated as unmarried).          Sec. 32(d).

     Petitioner did not file a joint return.       As just discussed,

she does not qualify to be treated as unmarried pursuant to

section 7703(b).   Accordingly, we sustain respondent’s

disallowance of the claimed EIC.


                                              Decision will be entered

                                         for respondent.
