T.C. Summary Opinion 2002-69
UNITED STATES TAX COURT
ARTHUR MCGEE, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 4735-01S. Filed June 11, 2002.
Arthur McGee, pro se.
Margaret A. Martin, Daniel J. Parent, and Jeremy McPherson,
for respondent.
WOLFE, Special Trial Judge: This case was heard pursuant to
the provisions of section 7463 of the Internal Revenue Code in
effect at the time the petition was filed. The decision to be
entered is not reviewable by any other court, and this opinion
should not be cited as authority. Unless otherwise indicated,
subsequent section references are to the Internal Revenue Code in
- 2 -
effect for the year in issue, and all Rule references are to the
Tax Court Rules of Practice and Procedure.
Respondent determined a deficiency of $4,326 in petitioner’s
1999 Federal income tax. The issues for decision are whether
petitioner is entitled to the following: (1) Two dependency
exemption deductions; (2) head of household filing status; and
(3) an earned income credit.1
At the time the petition was filed, petitioner resided in
Vallejo, California.
Throughout 1999 petitioner was married to Cynthia McGee.
Because of marital problems, petitioner lived apart from his wife
at his parents’ house with two of his sons. Petitioner allegedly
paid to his parents rent of $300 per month for use of a room in
their 3-bedroom house. Petitioner and his two sons lived
together in the room that petitioner rented.
On his 1999 Federal income tax return petitioner claimed
dependency exemption deductions for his two sons. Petitioner
also claimed head of household filing status and an earned income
credit. In the notice of deficiency, respondent disallowed the
claimed dependency exemption deductions, the head of household
filing status, and the full amount of the claimed earned income
credit.
1
Petitioner also claimed a child tax credit. His
eligibility for the child tax credit is a computational matter.
- 3 -
The first issue for decision is whether petitioner is
entitled to dependency exemption deductions for his two sons.
Section 151(c)(1) allows a taxpayer to deduct an 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
calendar year for which such individuals are claimed as
dependents. Support includes food, shelter, clothing, medical
and dental care, education, and the like. Sec. 1.152-1(a)(2)(i),
Income Tax Regs. Eligible individuals who may be claimed as
dependents include, among others, sons of the taxpayer. Sec.
152(a)(1).
In deciding whether an individual received over half of his
support from the taxpayer, we evaluate the amount of support
furnished by the taxpayer as compared to the total amount of
support received by the claimed dependent from all sources.
Turecamo v. Commissioner, 554 F.2d 564, 569 (2d Cir. 1977), affg.
64 T.C. 720 (1975); sec. 1.152-1(a)(2)(i), Income Tax Regs. The
taxpayer must initially demonstrate, by competent evidence, the
total amount of support furnished by all sources for the taxable
year at issue. Blanco v. Commissioner, 56 T.C. 512, 514 (1971).
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
- 4 -
the exemption provided more than one-half of the support for the
claimed dependent. Id. at 514-515.
Petitioner failed to establish that he provided more than
one-half of the total support of his sons that lived with him.
See Rule 142(a).2 On his 1999 Federal income tax return
petitioner reported total income of $17,415. In contrast his
parents reported total income exceeding $100,000 for the same
year. Petitioner and his two sons lived in petitioner’s parents’
home for the entire year 1999. Petitioner has failed to
establish either the total amount of support that petitioner’s
sons received from all sources or the amount of support that they
received from petitioner. Other than alleged receipts for his
monthly rent payments of $300 to his parents, the only evidence
of support that petitioner presented to the Court was his
unsubstantiated testimony that he provided “100 percent” of the
support of his sons. He presented no checks to substantiate his
alleged payments. He had no grocery receipts or receipts for
alleged payments for clothing, and he admitted that he made no
payments for his sons’ entertainment. The receipts that
petitioner introduced concerning supposed payments of rent to his
mother all appear to have been prepared and signed at the same
time. Petitioner’s mother did not testify about the payments.
2
Sec. 7491(a) does not shift the burden of proof to
respondent in this case because petitioner has not presented
credible evidence concerning the support of his sons and has
failed to provide substantiation of his claims of payments for
their support and benefit. Sec. 7491(a)(1).
- 5 -
At the calendar call, petitioner had been warned to have his
witnesses available to testify at trial, and he made no
explanation of his mother’s absence. Consequently the receipts
are not convincing evidence that petitioner paid even the claimed
amount of rent. Petitioner did not present any witnesses to
corroborate any of his testimony. As petitioner bears the burden
of proof, we must sustain respondent’s disallowance of the
dependency exemption deductions.
The second and third issues for decision are whether
petitioner is entitled to head of household filing status and
whether petitioner is entitled to an earned income credit.
Generally, an individual who is married at the close of the
taxable year is not entitled to head of household filing status.
Sec. 2(b)(1). Similarly, an individual who is married at the
close of the taxable year is not entitled to an earned income
credit if he does not file a joint income tax return with his
spouse for the taxable year. Sec. 32(d). An exception to these
general rules exists but generally applies only if the individual
maintains a household which is the principal place of abode of at
least one child for whom the individual is entitled to a
dependency exemption deduction. Secs. 2(c), 32(d), 7703(b).3
Petitioner was married to Cynthia McGee at all times during
3
Further exceptions exist, but petitioner does not assert,
and nothing in the record indicates, that they may be applicable.
See secs. 2(b)(2), 7703(a).
- 6 -
1999. Petitioner did not file a joint income tax return with her
for that year. We have held that petitioner is not entitled to
any dependency exemption deduction for 1999. Consequently,
petitioner is not entitled to head of household filing status or
to an earned income credit.4 Secs. 2(b)(1), 32(d).
Reviewed and adopted as the report of the Small Tax Case
Division.
To reflect the foregoing,
Decision will be entered
for respondent.
4
Since petitioner was married at all times during 1999,
respondent might have utilized the standard deduction applicable
to married individuals filing separately. Respondent has not
done so, and consequently respondent’s deficiency determination
for 1999 was understated. Respondent’s counsel has explicitly
waived any claim to the additional deficiency resulting from this
apparent error. Moreover, because respondent did not assert any
claim for an increased deficiency, we lack jurisdiction to
redetermine the correct amount of the deficiency. See sec.
6214(a); Estate of Petschek v. Commissioner, 81 T.C. 260, 271-272
(1983), affd. 738 F.2d 67 (2d Cir. 1984).