VEGA v. COMMISSIONER

T.C. Memo. 2001-214

UNITED STATES TAX COURT

JUAN VEGA, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 9217-00. Filed August 10, 2001.

Juan Vega, pro se.

Kevin W. Coy, for respondent.

MEMORANDUM FINDINGS OF FACT AND OPINION

ARMEN, Special Trial Judge: Respondent determined

deficiencies in petitioner’s Federal income taxes for the taxable

years 1996 and 1997 in the amounts of $2,578 and $2,014,

respectively.
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The issues for decision are as follows:

(1) Whether petitioner included proper identifying numbers

of the individuals whom he claimed as dependents on his income

tax returns for 1996 and 1997. We hold that he did not;

accordingly, by virtue of section 151(e),1 petitioner is not

entitled to deductions for dependency exemptions for such

individuals.

(2) Whether petitioner, an unmarried individual, qualifies

for head-of-household filing status for 1996 and 1997. We hold

that he does not; accordingly, by virtue of sections 1(c), 3(c),

and 63(c), petitioner’s tax liabilities for the years in issue

must be determined using the tax table for “single” individuals,

as well as the standard deduction appropriate to that filing

status.

FINDINGS OF FACT

Some of the facts have been stipulated, and they are so

found. Petitioner resided in Long Beach, California, at the time

that his petition was filed with the Court.

Petitioner, an unmarried Mexican national, has been a

resident of California since 1988. During 1996 and 1997, the

taxable years in issue, petitioner resided in Long Beach,

California, and was employed as a fork lift operator by American

1
Unless otherwise indicated, all section references are to
the Internal Revenue Code in effect for 1996 and 1997, the
taxable years in issue.
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Racing Equipment, Inc., of Rancho Dominguez, California.

Although he resided in Long Beach in 1996 and 1997,

petitioner also maintained a residence in southern Mexico during

those years. Petitioner paid more than one-half of the cost of

maintaining this residence for each of those years.

During 1996 and 1997, petitioner’s father and mother, two

brothers, and two sisters (collectively, petitioner’s relatives)

lived at the residence in Mexico that petitioner maintained. The

names of these individuals, their relationship to petitioner, and

their birth dates are as follows:

Name Relationship Birth Date
Benjamin Vega father Oct. 30, 1927
Margarita Campos mother July 22, 1939
Jose De Jesus Vega brother Nov. 14, 1971
Rafael Vega brother Oct. 11, 1973
Cleofas Gabriela Vega sister May 21, 1977
Liliana Margarita Vega sister Jan. 20, 1981

Petitioner’s relatives are all Mexican nationals. None of

them has ever resided in the United States, nor has any one of

them ever worked in the United States.

Petitioner timely filed a U.S. Individual Income Tax Return

(Form 1040A) for 1996. On his return, petitioner designated his

filing status as head of household and claimed the standard

deduction in the amount appropriate to that filing status. Also

on his return, petitioner claimed his relatives as dependents.

For each of his relatives, petitioner listed a purported 9-digit

Social Security number (sometimes referred to as an SSN), the
 - 4 -

first 3 digits of which were as follows:

Name Relationship SSN
Benjamin Vega father 551-xx-xxxx
Margarita Campos mother 455-xx-xxxx
Jose De Jesus Vega brother 570-xx-xxxx
Rafael Vega brother 548-xx-xxxx
Cleofas Gabriela Vega sister 573-xx-xxxx
Liliana Margarita Vega sister 573-xx-xxxx

Petitioner also timely filed a U.S. Individual Income Tax

Return (Form 1040) for 1997. On his return, petitioner

designated his filing status as head of household and claimed the

standard deduction in the amount appropriate to that filing

status. Also on his return, petitioner claimed his relatives

(except for Jose De Jesus Vega) as dependents. For each of his

relatives, petitioner listed a purported 9-digit SSN, the first 3

digits of which were as follows:

Name Relationship SSN
Benjamin Vega father 551-xx-xxxx
Margarita Campos mother 455-xx-xxxx
1
Rafael Vega brother 456-xx-xxxx
Cleofas Gabriela Vega sister 573-xx-xxxx
Liliana Margarita Vega sister 573-xx-xxxx
1
Eight of the 9 digits of the purported SSN for Rafael Vega
on the 1997 return were different from the purported SSN for
Rafael Vega on the 1996 return. This discrepancy is unexplained
in the record.

According to the Office of the Regional Commissioner of the

Social Security Administration in Richmond, California, each of

the seven different purported SSNs listed by petitioner on his

1996 and 1997 tax returns for his relatives is a validly assigned

Social Security number, but it belongs to someone other than
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petitioner’s relative. In each instance, identifying information

provided, such as petitioner’s relative’s date of birth, does not

match corresponding information for the validly assigned SSN that

is on file with the Social Security Administration.

In addition, according to respondent’s computer records,

each of the seven different purported SSNs listed by petitioner

on his 1996 and 1997 tax returns for his relatives belongs to

someone other than petitioner’s relative. In each instance,

identifying information provided, such as petitioner’s relative’s

date of birth, does not match corresponding information for the

validly assigned SSN that is part of respondent’s computer

records. For example, the purported SSN listed by petitioner on

his 1996 tax return for his brother Rafael Vega relates to a

female individual in Rosemead, California, with a birth date of

May 27, 1947; further, the purported SSN listed by petitioner on

his 1997 tax return for his brother Rafael Vega relates to an

individual in Racine, Wisconsin, with a birth date of February 9,

1937.

In 1999 and 2000, respondent assigned each of petitioner’s

relatives an IRS Individual Taxpayer Identification Number

(ITIN). The date of the notice assigning the ITINs and the first

3 digits of such numbers were as follows:
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Name Relationship Notice Date ITIN
Benjamin Vega father Aug. 9, 1999 979-xx-xxxx
Margarita Campos mother Aug. 9, 1999 979-xx-xxxx
Jose De Jesus Vega brother Oct. 14, 1999 983-xx-xxxx
Rafael Vega brother Sept. 20, 1999 983-xx-xxxx
Cleofas Gabriela Vega sister July 9, 1999 980-xx-xxxx
Liliana Margarita Vega sister Mar. 6, 2000 990-xx-xxxx

In June 2000, respondent’s Appeals Office in Laguna Niguel,

California, issued a notice of deficiency to petitioner

determining deficiencies in his Federal income taxes for 1996 and

1997. The explanation of adjustments in the notice of

deficiency, together with the Appeals Office narrative, indicates

that petitioner satisfied all but one of the requirements for the

allowance of dependency exemptions, namely, that the taxpayer

include on the taxpayer’s return the identifying number of each

individual who is claimed as a dependent.

OPINION

As a preliminary matter, we note that deductions are

strictly a matter of legislative grace, and a taxpayer must

satisfy the specific requirements for any deduction claimed. See

New Colonial Ice Co. v. Helvering, 292 U.S. 435, 440 (1934).

Issue (1): Dependency Exemptions

A taxpayer is entitled to a deduction for an exemption for

each individual who qualifies as the taxpayer’s dependent under

sections 151 and 152. Secs. 151(a), (c), and 152. However,

section 151(e) limits this allowance by providing that “No

exemption shall be allowed under this section with respect to any
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individual unless the TIN of such individual is included on the

return claiming the exemption.”2 See Furlow v. United States, 55

F. Supp.2d 360, 362-365 (D. Md. 1999) (taxpayer’s failure to

comply with the requirement of section 151(e) is an absolute bar

to the allowance of a deduction for a dependency exemption),

affd. per curiam without published opinion 210 F.3d 361 (4th Cir.

2000). The constitutionality of section 151(e) has been upheld

by this Court. See Miller v. Commissioner, 114 T.C. 511 (2000);

Cansino v. Commissioner, T.C. Memo. 2001-134; see also Kocher v.

Commissioner, T.C. Memo. 2000-238; Davis v. Commissioner, T.C.

Memo. 2000-210.

Section 7701(a)(41) defines the term “TIN” for purposes of

the Internal Revenue Code to mean “the identifying number

assigned to a person under section 6109.” Section 6109(d)

provides that the Social Security account number3 issued to an

2
Sec. 151(e) was added to the Code by the Small Business
Job Protection Act of 1996 (SBJPA), Pub. L. 104-188, sec.
1615(a)(1), 110 Stat. 1853. Sec. 151(e) is generally effective
for returns due on or after Sept. 19, 1996. SBJPA sec.
1615(d)(1), 110 Stat. 1853. Accordingly, sec. 151(e) is
applicable in the present case because petitioner’s 1996 and 1997
returns were due after Sept. 19, 1996. See sec. 6072(a).
3
SSNs are issued by the Social Security Administration
(SSA) of the U.S. Department of Health and Human Services upon
application by a citizen, a qualified alien, or by a parent on
behalf of a qualified child. See generally 20 C.F.R. sec.
422.101 through 422.112 (2000). The issuance of an SSN results
in the creation of (1) a record at the SSA of that person’s
earnings for purposes of determining the old-age, survivors, and
disability insurance and other benefits to which that the person
(continued...)
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individual is the identifying number of the individual, except as

otherwise specified under the applicable regulations.

The regulations provide that an individual who is not

eligible to obtain a Social Security number and who is required

to furnish a taxpayer identifying number must apply for an ITIN.

Sec. 301.6109-1(d)(3)(ii), Proced. & Admin. Regs. An IRS ITIN is

a taxpayer identifying number issued to an alien individual by

the Internal Revenue Service, upon application, for use in

conjunction with requirements imposed by the Internal Revenue

Code. Sec. 301.6109-1(d)(3)(i), Proced. & Admin. Regs. An IRS

ITIN is not a Social Security number or an account number for use

in employment for wages. Id.

The regulations also provide that an individual who is duly

assigned a Social Security number or who is entitled to a Social

Security number will not be issued an IRS ITIN. Sec. 301.6109-

1(d)(4), Proced. & Admin. Regs.

In sum, an individual required to furnish a taxpayer

identification number must use the individual’s SSN unless the

individual is not eligible to obtain an SSN, in which case the

3
(...continued)
may be entitled, and (2) a unique numerical identifier for the
individual for use by a variety of governmental and private
entities. See Miller v. Commissioner, 114 T.C. 511, 513-514
(2000).
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individual must use an IRS ITIN.4

In the present case, petitioner did not include on his tax

returns for 1996 and 1997 either valid SSNs or IRS ITINs for his

relatives. Rather, petitioner listed purported SSNs relating to

individuals other than his relatives. Because section 151(e)

requires that the return include the identifying number of the

individual who is claimed as a dependent on the return, and not

just the identifying number of any individual, it is apparent

that petitioner did not comply with the statutory mandate.

At trial, petitioner testified that in 1992, his father

Benjamin Vega traveled from petitioner’s residence in southern

Mexico to the American Consulate in Tijuana, Mexico,5 and

obtained SSNs (and not IRS ITINs) for petitioner’s relatives.

Petitioner testified further that those SSNs were the exact same

SSNs that were included on his returns for 1996 and 1997.6

4
Sec. 301.6109-1, Proced. & Admin. Regs., was amended to
expressly so provide. See sec. 301.6109-1(a)(1)(ii)(A) and (B),
Proced. & Admin. Regs. However, paragraphs (a)(1)(ii)(A) and
(a)(1)(ii)(B) apply to income tax returns due (without regard to
extensions) on or after Apr. 15, 1998. Sec. 301.6109-
1(j)(2)(iii), Proced. & Admin. Regs.
5
We take note of the fact that Tijuana is located at the
U.S.-Mexican border adjacent to San Diego.
6
Petitioner did not explain why two different purported
SSNs for his brother Rafael Vega were included on his 1996 and
1997 returns.
 - 10 -

We are unable to accept petitioner’s testimony for a

variety of reasons, among them the following three: First,

petitioner introduced no documentary evidence to support his

testimony.7 Second, we do not think that a U.S. consular office

would issue six SSNs that had already been assigned to other

individuals. Third, we do not think that SSNs would be assigned

to nonresident foreign nationals who are not employed in the

United States or not otherwise legally in the United States for a

valid nonwork purpose. In this regard, see 20 C.F.R. sec.

422.104(a)(2), (3), 422.107(a), (e) (2000).

In view of the foregoing, we hold that section 151(e) bars

allowance of deductions for dependency exemptions for

petitioner’s relatives on petitioner’s 1996 and 1997 income tax

returns. Respondent’s determination in this regard is therefore

sustained.

Issue (2): Filing Status

Petitioner designated his filing status as head of household

on his 1996 and 1997 income tax returns.

As relevant herein, a taxpayer is considered a head of

household if either (1) the taxpayer maintains as his or her home

a household that constitutes, for more than one-half of the

7
Petitioner did offer one exhibit in support of his
testimony, but it was not admitted into evidence because (inter
alia) it was incomplete on its face, it was not authenticated,
and it was hearsay (and there were no circumstantial guaranties
of trustworthiness or other applicable hearsay exception).
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taxable year, the principal place of abode of an individual who

qualifies as the taxpayer’s dependent under sections 151 and 152,

or (2) the taxpayer maintains a household that constitutes the

principal place of abode of the taxpayer’s father or mother but

only if such parent qualifies as the taxpayer’s dependent under

sections 151 and 152. Sec. 2(b)(1).

We have already held that petitioner is not entitled to an

allowance for a dependency exemption for any of his relatives in

1996 and 1997. Accordingly, petitioner does not qualify as a

head of household for either of those years. Sec. 2(b)(1).

Because petitioner was unmarried, his filing status is “single”,

see secs. 1(c), 3(c), and he is entitled to the standard

deduction applicable to that particular filing status; see sec.

63(c). Respondent’s determination in this regard is therefore

sustained.

In order to reflect the foregoing,

Decision will be entered

for respondent.