T.C. Memo. 1999-387
UNITED STATES TAX COURT
KERRY L. BRIGNAC, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 10780-98. Filed November 29, 1999.
Kerry L. Brignac, pro se.
Linda A. Neal, for respondent.
MEMORANDUM OPINION
WOLFE, Special Trial Judge: Respondent determined
deficiencies in petitioner's Federal income taxes in the amounts
of $3,795 and $2,025 for the taxable years 1995 and 1996,
respectively. Unless otherwise indicated, section references are
to the Internal Revenue Code in effect for the years in issue.
The issues for decision are: (1) Whether petitioner is
entitled to claim his sons, Derrell and Travis Brignac, as
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dependents; (2) whether petitioner is entitled to head of
household filing status; and (3) whether petitioner is entitled
to claim his sons as qualifying children for the earned income
credit (EIC).
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 New
Orleans, Louisiana, when the petition in this case was filed.
On his 1995 and 1996 Federal income tax returns, petitioner
claimed dependency exemptions for his sons, head of household
filing status (listing his sons as qualifying persons), and an
EIC (listing his sons as qualifying children). Petitioner
reported adjusted gross income (AGI) in the amounts of $12,214
and $6,995 on his 1995 and 1996 Federal income tax returns,
respectively.
Petitioner has never been married. During the years in
issue he did not reside with his sons' mother, Twyanna Baker (Ms.
Baker). Petitioner claims that for the years in issue he and Ms.
Baker shared custody and financial responsibility for his sons
and that his sons resided with him for part of the year and with
Ms. Baker for part of the year.
1. Personal Exemptions
Petitioner claimed dependency exemptions for his sons on his
1995 and 1996 Federal income tax returns. Respondent has
determined that petitioner is not entitled to dependency
exemptions for his sons because petitioner has not substantiated
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that he had custody of them for the greater portion of either of
the years in issue.
Section 151(a) and (c) allows a deduction for a dependent as
defined in section 152. A son or daughter of the taxpayer, over
half of whose support during the calendar year is provided for by
the taxpayer, is a dependent. See sec. 152(a). However, section
152(e)(1) further provides that if a child receives over half of
his support during the calendar year from parents who live apart
at all times during the last 6 months of the calendar year, and
if the child is in the custody of one or both his parents for
more than one-half of the calendar year, then the child is
treated as receiving over half of his support during the year
from the parent having custody for a greater portion of the
calendar year. The regulations provide: "In the event of so-
called 'split' custody, or if neither a decree or agreement
establishes who has custody, * * * 'custody' will be deemed to be
with the parent who, as between both parents, has the physical
custody of the child for the greater portion of the calendar
year." Sec. 1.152-4(b), Income Tax Regs. Section 152(e)(2)
provides an exception to this rule where the custodial parent
releases his claim to the exemption.
During the years in issue, petitioner and Ms. Baker did not
reside together, and they provided over one-half of Derrell's and
Travis' support. Petitioner contends that Derrell and Travis
resided with him for part of the years in issue. However,
petitioner has not provided convincing evidence that demonstrates
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that Derrell and Travis resided with him for the majority of
either of those years. Moreover, petitioner testified that he
did not even claim to know whether his sons spent the majority of
either of the years at issue with him or with their mother.
Based upon this record, we find that petitioner has failed to
demonstrate that he had physical custody of the children for the
greater portion of either of the years in issue. Moreover,
petitioner has not provided evidence that Ms. Baker released her
claim to the exemptions for Derrell and Travis. On the contrary,
the record indicates that Ms. Baker claimed the exemptions for
Derrell and Travis on her tax returns for 1995 and 1996.
Therefore, we hold that petitioner is not entitled to dependency
exemptions for Derrell and Travis for the years 1995 and 1996.
2. Head of Household Filing Status
Petitioner claimed head of household filing status on his
1995 and 1996 Federal income tax returns and listed his sons as
qualifying persons. Respondent has determined that petitioner's
proper filing status for 1995 and 1996 is single. Section 2(b)
provides that a taxpayer may be considered a head of household if
the taxpayer is not married at the close of the taxable year and
maintains as his or her home a household that constitutes the
principal place of abode for more than half of the taxable year
for a child of the taxpayer. See sec. 2(b)(1)(A)(i).
As we discussed above, petitioner failed to demonstrate that
Derrell and Travis resided in his home for the greater portion of
either of the years in issue. Accordingly, we hold that
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petitioner is not entitled to head of household filing status for
1995 and 1996.
3. Earned Income Credit
Petitioner claimed earned income credits (EIC) in the
amounts of $2,921 and $2,790 on his 1995 and 1996 Federal income
tax returns, respectively. In claiming the EIC, petitioner
listed his sons as qualifying children. Section 32(a) generally
provides an eligible individual with an EIC against his or her
income tax liability. However, section 32(a)(2) limits the
amount of credit allowable to a taxpayer.
Section 32(a)(2) provides:
(2) Limitation.--The amount of the credit
allowable to a taxpayer under paragraph (1) for any
taxable year shall not exceed the excess (if any) of--
(A) the credit percentage of the earned income
amount, over
(B) the phaseout percentage of so much of the
modified adjusted gross income (or, if greater,
the earned income) of the taxpayer for the taxable
year as exceeds the phaseout amount.
In the case of an eligible individual with no qualifying
child, for 1996 the applicable credit percent and the phaseout
percentage are 7.65, the earned income amount is $4,220, and the
phaseout amount is $5,280. See sec. 32(b). In the case of an
eligible individual with no qualifying child for 1995, the
applicable credit percent and the phaseout percentage are 7.65,
the earned income amount is $4,100, and the phaseout amount is
$5,130. See Rev. Proc. 94-72, 1994-2 C.B. 811. Accordingly, an
eligible individual with no qualifying children is not entitled
to the earned income credit for 1995 and 1996 if his adjusted
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gross income is in excess of $9,230 and $9,500, respectively.
See sec. 32(a) and (b).
Respondent determined that for the years in issue petitioner
did not have any qualifying children and that pursuant to the
limitation contained in section 32(a)(2), he is not entitled to
an EIC for 1995 and is only entitled to an EIC in the amount of
$193 for 1996. A qualifying child is defined, among other
things, as a son or daughter of the taxpayer, or a descendant of
either, having the same principal place of abode as the taxpayer
for more than one-half of the taxable year and who meets the age
requirements contained in section 32(c)(3)(C). See sec.
32(c)(3).
As discussed above, petitioner failed to provide convincing
evidence to demonstrate that he provided the principal place of
abode for his sons for more than one-half of either of the years
1995 and 1996. Accordingly, respondent's determination is
sustained.
Decision will be entered
for respondent.