T.C. Summary Opinion 2002-37
UNITED STATES TAX COURT
STEVEN GENORIS WILKERSON, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 8121-01S. Filed April 8, 2002.
Steven Genoris Wilkerson, pro se.
Kenneth L. Bressler, for respondent.
COUVILLION, Special Trial Judge: This case was heard
pursuant to section 7463 in effect when the petition was filed.1
The decision to be entered in this case is not reviewable by any
other Court, and this opinion should not be cited as authority.
Respondent determined a deficiency in petitioner's Federal
income tax in the amount of $3,144 for 2000.
1
Unless otherwise indicated, section references
hereafter are to the Internal Revenue Code in effect for the year
at issue.
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The issues for decision are: (1) Whether petitioner is
entitled to a claimed dependency exemption deduction under
section 151; (2) whether petitioner is entitled to head-of-
household filing status under section 2(b); (3) whether
petitioner is entitled to the earned income credit under section
32(a); and (4) whether petitioner is entitled to the child care
credit under section 21.
Some of the facts were stipulated. Those facts, with the
exhibits annexed thereto, are so found and are made part hereof.
Petitioner's legal residence at the time the petition was filed
was Dallas, Texas.
On his Federal income tax return for 2000, petitioner
claimed a dependency exemption deduction for a child, Christopher
Simon (Christopher), who was identified on the return as
petitioner's son. Petitioner also claimed an earned income
credit and a child care credit based on Christopher as the
qualifying person. Finally, petitioner claimed head-of-household
filing status. In the notice of deficiency, respondent
determined that petitioner was not entitled to the claimed
dependency exemption deduction, that Christopher was not a
qualifying child for purposes of the claimed earned income and
child care credits, and that petitioner's filing status was
single rather than head-of-household.
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The claimed dependent, Christopher, was born on April 21,
1987. His birth certificate, which was offered into evidence,
does not list a father. The mother listed on the certificate is
Sonja Michelle Simon.
Petitioner was never legally married to Sonja Michelle
Simon, although the two had lived together for several years and
had one son, who was not claimed by petitioner as a dependent on
the tax return at issue in this case. At the time Christopher
was born, petitioner and Sonja Michelle Simon were no longer
living together. However, petitioner claims his entitlement to
the dependency exemption for Christopher and the related credits
based on his relationship with Sonja Michelle Simon, which he
described at trial as follows:
THE WITNESS: We're common-law married and have been
since I was 16. We have one son together and Christopher
came along after we broke up.
THE COURT: So you're not the father of Christopher?
THE WITNESS: I couldn't tell you that. I never
pursued it. As I told the attorney, I didn't pursue a blood
test or any of that. I just claim he is my stepson. And I
take care of him. Because the person that she's saying is
his father is nowhere in the picture. So I take care of him
like I take care of my son.
During 2000, petitioner lived with his mother in a house
owned by petitioner's brother. The rent for use of the house was
the amount of the monthly mortgage payment, which was $750 per
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month. Petitioner contends he paid $300 per month for his part
of the rent and paid one of the utility bills each month,
including some amount for food. The remainder was paid by his
mother. Christopher did not live with petitioner on a full-time
basis, which petitioner acknowledges. Petitioner testified that
Christopher was "in and out of the house" throughout the year and
estimated that Christopher lived with him, on this basis, for at
least 6 months of the year. No documentary evidence was
submitted establishing the exact amount of time Christopher lived
with petitioner during 2000, nor was any evidence presented to
establish the amount of support petitioner provided to
Christopher during the year, as well as the amount of support
provided by others, including petitioner's mother and the child's
mother, and any other outside sources.
Section 151(c) allows taxpayers to deduct an annual
exemption amount for each dependent as defined in section 152.
Under section 152(a), the term "dependent" means certain
individuals over half of whose support was received from the
taxpayer during the taxable year in which such individuals are
claimed as dependents. Eligible individuals who may be claimed
as dependents include, among others, a son or stepson of the
taxpayer. See sec. 152(a)(1) and (2). If a claimed dependent is
not within the category of relationships listed in section
152(a)(1) through (8), section 152(a)(9) provides generally that
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an individual may nevertheless qualify as a dependent if such
individual, for the entire taxable year, had "as his principal
place of abode the home of the taxpayer and is a member of the
taxpayer's household." Sec. 152(a)(9); sec. 1.152-1(b), Income
Tax Regs. Also, a foster child is treated as a child of the
taxpayer if the child satisfies the requirements of section
152(a)(9). Sec. 152(b)(2).
Section 1.152-1(a)(2)(i), Income Tax Regs., provides that,
in determining whether an individual received over half of his
support from the taxpayer, "there shall be taken into account the
amount of support received from the taxpayer as compared to the
entire amount of support which the individual received from all
sources, including support which the individual himself
supplied." In Blanco v. Commissioner, 56 T.C. 512, 514-515
(1971), this Court held that, in establishing that more than one-
half of a dependent's support has been provided, a prerequisite
to such a showing is the demonstration by competent evidence of
the total amount of the dependent's support from all sources for
that year. If the amount of total support is not established and
cannot be reasonably inferred from competent evidence available
to the Court, it is not possible to conclude that the taxpayer
claiming the exemption provided more than one-half of the support
of the claimed dependent.
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The Court is not satisfied from the evidence that petitioner
provided more than half of the support for Christopher during the
year at issue. Petitioner presented no evidence to show the
total support that was provided to the child during 2000 and the
amount he provided to establish that such amount met the one-half
threshold required under section 152(a). Moreover, the evidence
does not satisfy the Court that Christopher was petitioner's son
or stepson. Although section 152(a)(9) allows a dependency
exemption for a person who is not a child or other allowed
relative of the taxpayer, that provision requires as a condition
for the dependency exemption that the claimed dependent, for the
entire taxable year, had as his principal place of abode the home
of the taxpayer and was a member of the taxpayer's household.
Petitioner's evidence does not satisfy the Court that Christopher
was a member of petitioner's household or had his principal place
of abode with petitioner for the year 2000. Likewise,
Christopher does not qualify as a foster son pursuant to section
152(b)(2). The Court, therefore, sustains respondent on the
dependency question.
Section 2(b) provides generally that an individual shall be
considered a head-of-household if, among other requisites not
pertinent here, such individual maintains as his home a household
that constitutes for more than one-half of such taxable year the
principal place of abode, as a member of such household, of an
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unmarried son or stepson of the taxpayer, or of any other person
who is a dependent of the taxpayer if the taxpayer is entitled to
a dependency exemption deduction for such person under section
151. See sec. 2(b)(1)(A)(i) and (ii). In the preceding
discussion, the Court found that petitioner had not established
that Christopher was his son or stepson, nor had petitioner
established that he had provided more than half of Christopher's
support during 2000, as a result of which, petitioner was not
entitled to the dependency exemption deduction for Christopher.
Consequently, petitioner is not eligible for head-of-household
filing status for 2000. Respondent is sustained on this issue.
Section 32(a) provides for an earned income credit in the
case of an eligible individual. Section 32(c)(1)(A), in
pertinent part, defines an "eligible individual" as an individual
who has a qualifying child for the taxable year. Sec.
32(c)(1)(A)(i). A qualifying child is one who satisfies a
relationship test, a residency test, an age test, and an
identification requirement. Sec. 32(c)(3). To satisfy the
residency test, the qualifying child must have the same principal
place of abode as the taxpayer for more than one-half of the
taxable year in which the credit is claimed. Sec.
32(c)(3)(A)(ii). The record does not establish that petitioner's
home was the principal place of abode for Christopher for more
than one-half of the 2000 tax year. Moreover, since petitioner
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did not establish that Christopher was his son or stepson, the
only other possibility for petitioner to claim the credit would
be to establish that Christopher was his foster child.
Christopher, however, would not qualify as a foster child of
petitioner because, under section 32(c)(3)(B)(iii)(I), (III),
Christopher was not placed with petitioner by an authorized
placement agency, and Christopher did not have the same principal
place of abode as petitioner for the entire taxable year.
Petitioner, therefore, is not entitled to the earned income
credit. Respondent is sustained on this issue.2
Section 21(a) generally provides for what is sometimes
referred to as the child care credit, which is a credit against
the tax and is allowed to an individual who maintains a household
that includes as a member one or more qualifying individuals.
The term "qualifying individual", under section 21(b)(1),
includes a dependent of the taxpayer under age 13, with respect
to whom the taxpayer is entitled to a dependency deduction under
section 151(c). The allowable credit, under section 21(b)(2),
generally is based upon employment-related expenses that are
2
Sec. 32(c)(1)(A)(ii) allows the earned income credit to
a taxpayer who does not have a qualifying child. However, in
order for a taxpayer to be eligible for a credit pursuant to sec.
32(c)(1)(A)(ii), his adjusted gross income must not exceed the
limitations of sec. 32(a). In this case, with no qualifying
children, petitioner's earned income exceeded the phaseout amount
provided in sec. 32(b)(2).
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incurred to enable the taxpayer to be gainfully employed,
including expenses incurred for the care of a qualifying
individual. Since petitioner is not entitled to the dependency
exemption for Christopher, he is not entitled to the child care
credit.
Reviewed and adopted as the report of the Small Tax Case
Division.
Decision will be entered
for respondent.