T.C. Memo. 2013-267
UNITED STATES TAX COURT
SIYAD A. JIBRIL, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 28216-11. Filed November 21, 2013.
Siyad A. Jibril, pro se.
Nick G. Nilan, for respondent.
MEMORANDUM FINDINGS OF FACT AND OPINION
VASQUEZ, Judge: Respondent determined a $4,362 deficiency in
petitioner’s Federal income tax for 2010. The issues for decision are: (1) whether
petitioner is entitled to dependency exemption deductions for his cousins Najmo
and Anas Muhumed; (2) whether petitioner is entitled to head of household filing
status; and (3) whether petitioner is entitled to an earned income credit.
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[*2] FINDINGS OF FACT
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 the State of Washington at the time he filed the petition.
Petitioner is an immigrant from Kenya and has lived in the United States
since 2007. He moved to Washington in May 2008. Osab Sahal is petitioner’s
aunt and the mother of two children: Anas Muhumed and Najmo Muhumed, who
are also petitioner’s cousins. Petitioner’s aunt and cousins emigrated from Kenya
to Arizona in April 2009. During 2010, the tax year in issue, Anas was 18 years
old and Najmo was 20, and both were enrolled in high school.
In June 2009 petitioner moved to an apartment complex in Kent,
Washington, where he signed a one-year lease for apartment R102. In December
2009 petitioner purchased tickets to fly his aunt and cousins from Arizona to
Washington where they moved into petitioner’s apartment.
The four lived together in apartment R102 until sometime in January 2010,
when petitioner’s aunt and cousins moved to another unit within the same
apartment complex--apartment W203. At the time, petitioner’s aunt and cousins
were relying in part on Washington State welfare benefits and had insufficient
income to qualify for an apartment on their own. Petitioner helped them qualify
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[*3] by cosigning the lease for apartment W203 and paying a portion of the
monthly rent.
Throughout 2010 petitioner also supported his cousins in various other
ways. He paid Anas’ cell phone bill, purchased a car for his cousins’ use, and paid
the car insurance premiums. He also took his cousins shopping for school
clothing.
When petitioner’s lease for apartment R102 expired in June 2010, he moved
out of his apartment and into apartment W203 with his aunt and cousins. They
lived together in apartment W203 until September 2010, when petitioner moved
from Kent to Seatac, Washington. Petitioner resided in Seatac for the remainder
of 2010 and was still living in Seatac at the time he filed the petition.
Petitioner timely filed Form 1040, U.S. Individual Income Tax Return, for
2010 on which he reported $26,152 in wages and claimed dependency exemption
deductions for his cousins, head of household filing status, and a $2,925 earned
income credit.
OPINION
I. Burden of Proof
Petitioner has neither claimed nor shown that he satisfied the requirements
of section 7491(a) to shift the burden of proof to respondent with regard to any
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[*4] factual issue.1 Accordingly, petitioner bears the burden of proof. See Rule
142(a).
II. Dependency Exemption Deduction
Section 151(a) and (c) allows taxpayers an annual exemption deduction for
each “dependent” as defined in section 152. A dependent is either a qualifying
child or a qualifying relative. Sec. 152(a). The requirement is disjunctive and,
accordingly, satisfaction of either the qualifying child requirement or the
qualifying relative requirement allows the individual to be claimed as a dependent.
A. Qualifying Child
An individual must meet five requirements in order to qualify as a
taxpayer’s qualifying child. See sec. 152(c)(1)(A)-(E). The pertinent factor here
is the relationship requirement.
A qualifying child must be the taxpayer’s child, brother, sister, stepbrother,
stepsister, or a descendant of any of them. Sec. 152(c)(1) and (2). A cousin,
however, does not fall within the list of relationships set out in section 152(c)(2).
Thus, neither of petitioner’s cousins is his qualifying child within the meaning of
section 152(c). See sec. 152(c)(1)(A).
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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[*5] B. Qualifying Relative
An individual must meet four requirements in order to qualify as a
taxpayer’s qualifying relative. See sec. 152(d)(1)(A)-(D). The two pertinent
factors here are the relationship requirement and the support requirement.
In order to satisfy the relationship requirement set out in section
152(d)(1)(A), an individual must bear a relationship to the taxpayer as specified in
section 152(d)(2). A cousin is not one of the specified relationships. See sec.
152(d)(2). However, petitioner’s cousins may still meet the relationship
requirement, under section 152(d)(2)(H), if either is “[a]n individual (other than an
individual who at any time during the taxable year was the spouse, determined
without regard to section 7703, of the taxpayer) who, for the taxable year of the
taxpayer, has the same principal place of abode as the taxpayer and is a member of
the taxpayer’s household.” In order for an individual to be considered a member
of a taxpayer’s household, both the taxpayer and the individual must occupy the
household for the entire taxable year. Sec. 1.152-1(b), Income Tax Regs.2
2
Although sec. 1.152-1, Income Tax Regs., has not been amended to reflect
changes in sec. 152 that were enacted by the Working Families Tax Relief Act of
2004, Pub. L. No. 108-311, sec. 201, 118 Stat. at 1169, we continue to rely on the
regulation to the extent it is not inconsistent with sec. 152, as amended. See, e.g.,
Gaitor v. Commissioner, T.C. Memo. 2010-70, 2010 WL 1407204, at *2 n.9.
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[*6] During 2010 petitioner and his cousins lived together in apartment R102 for
approximately one month, in separate apartments for four months, and together
again in apartment W203 for as many as four months. For the remaining three
months of the year, petitioner and his cousins lived in different towns. Although
the regulations do provide an exception for temporary absences due to special
circumstances, see id., there is no evidence in the record that petitioner’s move to
Seatac was a temporary absence.
Petitioner did not occupy the same household as his cousins for the entire
taxable year. Therefore, his cousins do not meet the relationship requirement set
out in section 152(d)(1)(A). Consequently, they are not petitioner’s qualifying
relatives under section 152(d), regardless of the amount of support petitioner
provided to them.
We find that petitioner’s cousins are neither his qualifying children nor his
qualifying relatives; therefore, petitioner is not entitled to a dependency exemption
deduction for either of them.
III. Head of Household Filing Status
As relevant here, section 2(b)(1) defines “head of household” as an
unmarried individual who maintains as his home a household that constitutes for
more than one-half of the taxable year the principal place of abode of either a
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[*7] qualifying child or any other dependent of the taxpayer if the taxpayer is
entitled to a deduction for the dependent under section 151. See sec. 2(b)(1). The
term “qualifying child”, for purposes of section 2(b)(1), means a qualifying child
as defined in section 152(c) without regard to section 152(e). Sec. 2(b)(1)(A)(i).
We have already found that petitioner’s cousins are not his qualifying
children or dependents within the meaning of section 151(c),3 and petitioner has
not introduced any evidence to show that he lived with any other qualifying
children or dependents during 2010. Accordingly, petitioner is not entitled to file
as head of household for 2010. See sec. 2(b)(1)(A)(i).
IV. Earned Income Credit
Section 32(a) provides an earned income credit for an eligible individual for
so much of the taxpayer’s earned income for the taxable year as does not exceed
the earned income amount. To be entitled to an earned income credit for the 2010
tax year, a taxpayer’s earned income and adjusted gross income for the taxable
year must each be less than: (i) $40,363 with two or more qualifying children; (ii)
$35,535 with one qualifying child; or (iii) $13,460 with no qualifying children.
Sec. 32(b)(2), (j)(1); Rev. Proc. 2009-50, sec. 3.06, 2009-45 I.R.B. 617, 622. The
term “qualifying child”, for purposes of section 32, means a qualifying child
3
This remains true even without regard to sec. 152(e).
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[*8] as defined in section 152(c) without regard to section 152(c)(1)(D) and (e).
Sec. 32(c)(3)(A).
As discussed supra, petitioner’s cousins are not his qualifying children.4
Thus, for purposes of section 32, petitioner does not have any qualifying children.
Petitioner reported earned income of $26,152 for 2010, see sec. 32(c)(2)(A)(i)
(defining earned income to include wages), which is greater than the phaseout
amount for a taxpayer with no qualifying children. Thus, petitioner is ineligible
for an earned income credit. Respondent’s determination is sustained.
We are sympathetic to petitioner’s position. We also realize that the
statutory requirements may seem to work harsh results to taxpayers, such as
petitioner, who have provided significant support to family members but are
unable to claim dependency exemption deductions for them. However, we are
bound by the statute as written and the accompanying regulations when consistent
therewith. Michaels v. Commissioner, 87 T.C. 1412, 1417 (1986).
4
This remains true even without regard to sec. 152(c)(1)(D) and (e).
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[*9] To reflect the foregoing,
Decision will be entered for
respondent.