T.C. Summary Opinion 2006-17
UNITED STATES TAX COURT
MARIA ROSA BLAND, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 7902-04S. Filed January 31, 2006.
Maria Rosa Bland, pro se.
John D. Faucher, for respondent.
GOLDBERG, 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
effect for the year in issue, and all Rule references are to the
Tax Court Rules of Practice and Procedure.
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Respondent determined a deficiency in petitioner’s Federal
income tax of $1,634 for the taxable year 2002.
The issues for decision are: (1) Whether petitioner is
entitled to claim a dependency exemption deduction for JM;1 and
(2) whether petitioner is entitled to an earned income credit
with JM as the qualifying child.
Background
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 Sun
Valley, California, on the date the petition was filed in this
case.
During taxable year 2002, petitioner was involved in a
romantic relationship with Orlando Martinez (Mr. Martinez). In
fact, during taxable year 2002, petitioner and Mr. Martinez
became engaged to be married.
In January of 2002, petitioner and her son, AM, from a
previous marriage, moved in with Mr. Martinez and his three
children from previous relationships. One of Mr. Martinez’s
children, JM, is the child at issue in the present case. In
September of 2002, petitioner, her son, Mr. Martinez, and his
children all moved into a larger residence. They all continued
to live together for the remainder of the taxable year 2002.
1
The Court uses only the minor child’s initials.
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During the year in issue and through the time of trial,
petitioner had not adopted JM, had not married Mr. Martinez, and
was not related to JM. During the year in issue, JM was 11 years
old.
During taxable year 2002, petitioner was an independent
sales director for Mary Kay, Inc. Mary Kay, Inc. issued
petitioner a Form 1099-MISC, Miscellaneous Income, which
reflected “nonemployee compensation” of $25,765.25 and “other
income” of $3,758.81.
Also, during taxable year 2002, Mr. Martinez was disabled
and received disability benefits of approximately $420 per month.
Mr. Martinez did not file a Federal income tax return for taxable
year 2002.
On or about April 3, 2003, petitioner filed her Form 1040,
U.S. Individual Income Tax Return, for taxable year 2002.
Petitioner filed her 2002 Federal income tax return as a head-of-
household and claimed dependency exemption deductions for AM and
JM. Petitioner also claimed an earned income credit with AM and
JM as the qualifying children.
On March 18, 2004, respondent issued a notice of deficiency
denying petitioner (1) the claimed dependency exemption deduction
with respect to JM, and (2) the portion of the claimed earned
income credit with JM as the qualifying child.
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Discussion
In general, the Commissioner’s determination set forth in a
notice of deficiency is presumed correct. Welch v. Helvering,
290 U.S. 111, 115 (1933). In pertinent part, Rule 142(a)(1)
provides the general rule that “The burden of proof shall be upon
the petitioner”. In certain circumstances, however, if the
taxpayer introduces credible evidence with respect to any factual
issue relevant to ascertaining the proper tax liability, section
7491 places the burden of proof on the Commissioner. Sec.
7491(a)(1); Rule 142(a)(2). Credible evidence is “‘the quality
of evidence which, after critical analysis, * * * [a] court would
find sufficient * * * to base a decision on the issue if no
contrary evidence were submitted’”.2 Baker v. Commissioner, 122
T.C. 143, 168 (2004) (quoting Higbee v. Commissioner, 116 T.C.
438, 442 (2001)). Section 7491(a)(1) applies only if the
taxpayer complies with substantiation requirements, maintains all
required records, and cooperates with the Commissioner for
witnesses, information, documents, meetings, and interviews.
Sec. 7491(a)(2). Although neither party alleges the
applicability of section 7491(a), we conclude that the burden of
2
We interpret the quoted language as requiring the
taxpayer’s evidence pertaining to any factual issue to be
evidence the Court would find sufficient upon which to base a
decision on the issue in favor of the taxpayer. See Bernardo v.
Commissioner, T.C. Memo. 2004-199.
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proof has not shifted to respondent with respect to any of the
issues in the present case.
Moreover, deductions are a matter of legislative grace and
are allowed only as specifically provided by statute. INDOPCO,
Inc. v. Commissioner, 503 U.S. 79, 84 (1992); New Colonial Ice
Co. v. Helvering, 292 U.S. 435, 440 (1934).
1. Deduction for Dependency Exemption
Section 151 allows as a deduction an exemption for each
dependent of the taxpayer. See sec. 151(c). Section 152(a)
defines the term “dependent”, in pertinent part, to include “An
individual * * * who, for the taxable year of the taxpayer, has
as his principal place of abode the home of the taxpayer and is a
member of the taxpayer’s household”, provided that more than half
of the individual’s support, for the calendar year was received
from the taxpayer. “Support” includes “food, shelter, clothing,
medical and dental care, education, and the like.” Sec. 1.152-
1(a)(2)(i), Income Tax Regs.
In determining whether an individual received more than one-
half of his or her 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. Id. In other words, the
support test requires the taxpayer to establish the total support
costs for the claimed individual and that the taxpayer provided
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more than half of that amount. Archer v. Commissioner, 73 T.C.
963, 967 (1980); see Cotton v. Commissioner, T.C. Memo. 2000-333;
Gulvin v. Commissioner, T.C. Memo. 1980-111, affd. 644 F.2d 2
(5th Cir. 1981); Toponce v. Commissioner, T.C. Memo. 1968-101. A
taxpayer who cannot establish the total amount of support costs
for the claimed individual generally may not claim that
individual as a dependent. Blanco v. Commissioner, 56 T.C. 512,
514-515 (1971); Cotton v. Commissioner, supra.
As previously stated, on her 2002 Federal income tax return
petitioner claimed a dependency exemption deduction for JM.
During taxable year 2002, petitioner resided with Mr.
Martinez and JM. Petitioner testified that she helped Mr.
Martinez support JM by paying for some clothing and food for JM.
Mr. Martinez corroborated petitioner’s testimony on this point.
Mr. Martinez further testified that he and petitioner split all
expenses which were incurred as a result of their cohabitation.
Additionally, Mr. Martinez testified that he solely supported his
other two children.
We are convinced that, during 2002, petitioner helped
support JM. Unfortunately, petitioner failed to provide the
Court with any specific testimony or documentary evidence as to
any specific amounts paid in support of JM during taxable year
2002.
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On the basis of the record before us, we cannot find that
petitioner has established the total support costs for JM during
taxable year 2002, nor has she established that she provided more
than half of that amount. Respondent’s determination on this
issue is sustained.
2. Earned Income Credit
As previously stated, petitioner claimed an earned income
credit for taxable year 2002 with AM and JM as the qualifying
children. In the notice of deficiency, respondent disallowed the
portion of the earned income credit with respect to JM as the
qualifying child.
Subject to certain limitations, an eligible individual is
allowed a credit which is calculated as a percentage of the
individual’s earned income. Sec. 32(a)(1). Earned income
includes wages. Sec. 32(c)(2)(A). Section 32(c)(1)(A)(i), in
pertinent part, defines an “eligible individual” as “any
individual who has a qualifying child for the taxable year”. A
“qualifying child” is one who satisfies a relationship test, a
residency test, and an age test. Sec. 32(c)(3). The pertinent
parts of section 32(c)(3) provide:
(3) Qualifying child.--
(A) In general.--The term “qualifying child” means,
with respect to any taxpayer for any taxable year, an
individual--
(i) who bears a relationship to the taxpayer
described in subparagraph (B),
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(ii) who has the same principal place of abode as
the taxpayer for more than one-half of such taxable
year, and
(iii) who meets the age requirements of
subparagraph (C).
(B) Relationship test.--
(i) In general.--An individual bears a
relationship to the taxpayer described in this
subparagraph if such individual is–-
(I) a son, daughter, stepson, or
stepdaughter, or descendant of any such
individual,
(II) a brother, sister, stepbrother, or
stepsister, or a descendant of any such
individual, who the taxpayer cares for as the
taxpayer’s own child, or
(III) an eligible foster child of the
taxpayer.
* * * * * * *
(iii) Eligible foster child.--For purposes of
clause (i), the term “eligible foster child” means an
individual not described in subclause (I) or (II) of
clause (i) who–
(I) is placed with the taxpayer by an
authorized placement agency, and
(II) the taxpayer cares for as the taxpayer’s
own child.
As previously stated, petitioner is not related to JM, she
has not adopted JM, and she has not married his father. We find
that JM fails the relationship test of section 32(c)(3)(B);
therefore, we need not and do not decide whether he satisfies the
residency test of section 32(c)(3)(A)(ii).
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Accordingly, respondent’s determination on this issue is
sustained.
Reviewed and adopted as the report of the Small Tax Case
Division.
Decision will be entered
for respondent.