T.C. Memo. 2014-147
UNITED STATES TAX COURT
PATRICK A. DAVIS, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 25645-12. Filed July 24, 2014.
Patrick A. Davis, pro se.
Emile Louis Hebert III, for respondent.
MEMORANDUM FINDINGS OF FACT AND OPINION
THORNTON, Chief Judge: Respondent determined a $3,128 deficiency in
petitioner’s 2010 Federal income tax and a section 6662(a) accuracy-related
penalty of $626.1 Respondent having conceded the penalty, the issues remaining
1
All section references are to the Internal Revenue Code in effect for the
year at issue, and all Rule references are to the Tax Court Rules of Practice and
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[*2] for decision are: (1) whether petitioner is entitled to a dependency exemption
for his daughter and (2) whether he is entitled to an earned income tax credit.
FINDINGS OF FACT
When he petitioned the Court, petitioner resided in Louisiana. He had two
children by his previous marriage to Sandra Johnson Davis, whom he divorced in
1997. A judgment of the 20th Judicial District Court, Parish of East Feliciana,
State of Louisiana, entered in 2000 (Louisiana court judgment) gave custody of
the two children to their mother.
One of those children, Ashley, turned 19 in 2010. That year she was a full-
time student at Southern University in Baton Rouge, studying registered nursing;
for about eight weeks between academic semesters she held a job, making slightly
more than minimum wage. She received more than half of her financial support
from petitioner, her paternal grandmother, her mother, and her maternal
grandfather.
In 2010 petitioner and Ashley lived with petitioner’s mother (Ashley’s
grandmother) in Slaughter, Louisiana, about 20 miles from Baton Rouge. Ashley
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Procedure. All monetary amounts are rounded to the nearest dollar.
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[*3] had her own room at her grandmother’s house, slept there about five nights a
week, and ate most of her meals there.
On his 2010 Federal income tax return petitioner claimed Ashley as his
dependent and also claimed a $2,726 earned income tax credit.
By notice of deficiency, respondent disallowed the dependency exemption
deduction and the earned income tax credit.
OPINION
I. Burden of Proof
The Commissioner’s determinations in a notice of deficiency are generally
presumed correct, and the taxpayer has the burden of proving that the
determinations are in error. Rule 142(a); Welch v. Helvering, 290 U.S. 111, 115
(1933). In certain circumstances, the burden of proof may shift to the
Commissioner. See sec. 7491(a). We need not decide whether the burden of
proof should shift, because we decide this case on a preponderance of the
evidence--particularly petitioner’s forthright, credible, and largely undisputed
testimony--without reference to the placement of the burden of proof.
II. Dependency Exemption
An individual is allowed a deduction for an exemption for “each individual
who is a dependent (as defined in section 152) of the taxpayer for the taxable
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[*4] year.” Sec. 151(c). Section 152(a) defines “dependent” to include “a
qualifying child”. Generally, a “qualifying child” must: (1) bear a specified
relationship to the taxpayer; (2) have the same principal place of abode as the
taxpayer for more than one-half of the taxable year; (3) meet certain age
requirements; (4) not have provided over one-half of his or her own support for
the year in question; and (5) not have filed a joint return (other than a claim for
refund) with a spouse. Sec. 152(c)(1). Respondent concedes that Ashley meets
the first and last of these requirements but disputes the others.
A. Principal Place of Abode
On the basis of our finding that petitioner and Ashley lived together with his
mother in 2010, we conclude that they had the same principal place of abode for
more than half of 2010, as required by section 152(c)(1)(B).
The Louisiana court judgment named Ashley’s mother as her custodial
parent. Apparently for that reason, respondent contends that petitioner was a
noncustodial parent in 2010 and so cannot claim Ashley as his qualifying child
because he did not attach to his 2010 return a written declaration from Ashley’s
mother waiving her right to claim Ashley as her dependent, as respondent
contends section 152(e) required. Respondent is mistaken. The special rule of
section 152(e) is inapplicable because, if for no other reason, in 2010 petitioner
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[*5] was in fact Ashley’s custodial parent within the meaning of the statute.2 A
custodial parent is defined as “the parent having custody for the greater portion of
the calendar year.” See sec. 152(e)(4)(A). The regulations similarly provide that
the custodial parent is the “parent with whom the child resides for the greater
number of nights during the calendar year”. Sec. 1.152-4(d)(1), Income Tax Regs.
According to the regulations, a child is treated as residing with a parent for a night
if: (1) the child sleeps at the residence of the parent or (2) if the child sleeps in the
company of the parent when the child does not sleep at a parent’s residence. Sec.
1.152-4(d)(1)(i) and (ii), Income Tax Regs. Because Ashley resided with
petitioner at her grandmother’s house more than half of 2010, petitioner was the
custodial parent and was not required to attach a written declaration to his return.
See Harris v. Commissioner, T.C. Memo. 2014-69, at *5-*6.3
2
Another requirement for applying the special rule of sec. 152(e) is that “a
child receive[] over one-half of the child’s support during the calendar year from
the child’s parents”--a fact neither established nor disproved on this record. We
need not consider this issue further, however, since we have concluded that sec.
152(e) is inapplicable for other reasons, as discussed above.
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We are mindful that because Ashley turned 18 before the year at issue, she
might have been emancipated under Louisiana law for all of 2010, see La. Civ.
Code Ann. art. 29 (2013), and so would have no custodial parent for that year, see
sec. 1.152-4(d)(1), Income Tax Regs. In that event, sec. 152(e) would not apply.
See sec. 1.152-4(g), Example (6), Income Tax Regs.; see also Kaechele v.
Commissioner, T.C. Memo. 1992-457. Because the parties have not raised this
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[*6] B. Age Requirement
To be a qualifying child, an individual must not have attained age 19 as of
the close of the calendar year in which the taxpayer’s taxable year begins or else
be a student who has not attained age 24 during that same year. Sec. 152(c)(1)(C),
(3)(A). In 2010 Ashley turned 19 and was a full-time student at Southern
University in Baton Rouge, Louisiana. See sec. 152(f)(2). Accordingly, she meets
the age requirement.
C. Support Requirement
We have found that in 2010 Ashley received more than half of her support
from family members, including petitioner.
In sum, we conclude and hold that Ashley was petitioner’s “qualifying
child” for petitioner’s 2010 tax year; consequently, he was entitled to the claimed
dependency exemption deduction.
III. Earned Income Tax Credit
Subject to various limitations, section 32(a)(1) allows an eligible individual
an earned income credit against the individual’s income tax liability. An “eligible
individual” is “any individual who has a qualifying child for the taxable year”.
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issue, however, and because we dispose of respondent’s contentions on other
grounds, we need not consider this issue further.
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[*7] Sec. 32(c)(1)(A)(i). Section 32(c)(3)(A) defines “qualifying child” to mean
“a qualifying child of the taxpayer (as defined in section 152(c) * * *).”
Respondent disallowed petitioner’s claimed earned income credit solely on the
basis of his determination that Ashley was not petitioner’s qualifying child.
Because we have held that Ashley was petitioner’s qualifying child for 2010, it
follows that petitioner is entitled to the earned income credit.
To reflect the foregoing and respondent’s concession,
Decision will be entered for
petitioner.