T.C. Summary Opinion 2003-89
UNITED STATES TAX COURT
TAYLOR BRINSON, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 9846-02S. Filed July 16, 2003.
Taylor Brinson, pro se.
John W. Sheffield, for respondent.
POWELL, Special Trial Judge: This case was heard pursuant
to the provisions of section 74631 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.
Respondent determined a deficiency of $4,507 in petitioner’s
1
Unless otherwise indicated, subsequent section references are
to the Internal Revenue Code in effect for the year in issue.
- 2 -
2000 Federal income tax. The issues are whether petitioner is
entitled to (1) dependency exemption deductions for his minor
niece and nephew (the children), (2) an earned income credit
(EIC) for the children, and (3) head of household filing status.
Petitioner resided in Thomson, Georgia, at the time the petition
was filed.
The facts may be summarized as follows. During the taxable
year 2000, petitioner resided in a house owned by his parents.
The house was owned free and clear of any mortgage. It was
occupied by his parents, the children, a sister (not the mother
of the children), and petitioner. The local probate court
decreed that petitioner’s parents were the legal guardians for
the children. According to petitioner, his parents, his sister,
and he had separate apartments, but all the utilities for gas,
electric, and water were billed as one unit. Petitioner did not
pay rent for the apartment he occupied, rather, he paid a portion
of the utility bills for the entire house.
Petitioner’s mother received welfare payments of
approximately $110 per month for each child. Petitioner’s father
received Social Security benefits of approximately $1,200 per
month or $14,400 per year. Petitioner did not know whether his
parents had any other income. The Social Security benefits were
greater than petitioner’s annual income. With regard to the
total support for the children, petitioner testified that he
- 3 -
“really couldn’t say a certain amount.” Petitioner also produced
no records and does not know the amount of support that he
provided for the children.
In preparing his 2000 Federal income tax return, petitioner
claimed, with respect to the children, two dependency exemption
deductions and an EIC based on the children’s being his foster
children, and used head of household filing status. Respondent
disallowed the dependency exemption deductions and the EIC.
Respondent also determined that petitioner’s proper filing status
was single.
Dependency Exemption Deductions
Petitioner argues that he is entitled to claim dependency
exemption deductions with respect to the children. Generally,
sections 151 and 152 provide that a taxpayer is entitled to
deduct an exemption for a minor dependent if the taxpayer
provides more than half of the support for the minor dependent.
A son or daughter of a taxpayer’s sister is included in the
definition of a dependent. Sec. 152(a)(6). The sole issue with
regard to the dependency exemption deductions claimed by
petitioner is whether petitioner has established that he provided
more than half of the support for the children.2
2
Sec. 7491 dealing with the burden of proof has no application
to this case because petitioner has not satisfied the
requirements of sec. 7491(a).
- 4 -
It is axiomatic that in order to establish that petitioner
provided more than half of the support of the children, he must
establish the amount of the children’s total support and the
amount of support that he provided. Here, petitioner has
satisfied neither of these prerequisites. Even if we assume that
petitioner paid the utilities, he has not shown that that amount
constituted more than half of the children’s support. We sustain
respondent’s disallowance of the dependency exemption deductions.
EIC
Section 32(a) generally provides eligible individuals with
an EIC against their income tax liability. An “eligible
individual” is defined as any individual who has a “qualifying
child”. Sec. 32(c)(1)(A)(i). A qualifying child includes “an
eligible foster child of the taxpayer.” Sec.
32(c)(3)(B)(i)(III). As relevant herein, an eligible foster
child may be, inter alia, a descendant of a brother or sister of
the taxpayer. Sec. 32(c)(3)(B)(iii)(I). Section
32(c)(3)(B)(iii) further provides that the taxpayer must care for
the foster child “as the taxpayer’s own child” and the foster
child must have “the same principal place of abode as the
taxpayer for the taxpayer’s entire taxable year.” While there is
some doubt as to when the children came to the house in which
petitioner resided, we are willing to assume that he did share
the same abode with the children for the 2000 taxable year.
- 5 -
Nonetheless, we are not willing to assume that he cared for the
children as if they were his own children. The fact of the
matter is that petitioner’s parents were the legal guardians of
the children, and according to a Temporary Letters of
Guardianship issued by the Probate Court it was their duty “to
see that the ward is adequately fed, clothed, sheltered, educated
and cared for, and that the ward receives all necessary medical
attention.” While we recognize that petitioner performed some of
these duties, e.g., getting the children to school and, on
occasion, picking them up from school, petitioner’s parents were,
in fact, the foster parents of the children. We, therefore,
sustain respondent’s determination with respect to the EIC.
Head of Household Filing Status
Petitioner claims that he maintained, as his household, the
principal place of abode of the children, and, therefore, is
entitled to use the head of household filing status. Section
2(b) provides the requirements for head of household filing
status. To qualify as a head of a household a taxpayer must (a)
be unmarried at the end of the taxable year, (b) not be a
surviving spouse, and (c) maintain as the taxpayer’s home a
household that constitutes the principal place of abode of a
dependent for whom the taxpayer is entitled to claim a deduction
under section 151. Sec. 2(b)(1)(A)(ii). As we have already
decided that petitioner is not entitled to claim the children as
- 6 -
his dependents, we sustain respondent’s determination with
respect to this issue.
Reviewed and adopted as the report of the Small Tax Case
Division.
Decision will be entered
for respondent.