T.C. Summary Opinion 2010-9
UNITED STATES TAX COURT
BARRY MAMOUDOU, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 28939-08S. Filed January 26, 2010.
Christopher Duling, for petitioner.
Jack T. Anagnostis, for respondent.
DEAN, Special Trial Judge: This case was heard pursuant to
the provisions of section 7463 of the Internal Revenue Code in
effect when the petition was filed. Pursuant to section 7463(b),
the decision to be entered is not reviewable by any other court,
and this opinion shall not be treated as precedent for any other
case. Unless otherwise indicated, subsequent section references
are to the Internal Revenue Code in effect for the year in issue,
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and all Rule references are to the Tax Court Rules of Practice
and Procedure.
Respondent determined a deficiency of $5,069.75 in
petitioner’s 2007 Federal income tax. The issue for decision is
whether petitioner is entitled to dependency exemption deductions
for the two children claimed on his 2007 Federal income tax
return.
Background
Some of the facts have been stipulated and are so found.
The stipulation of facts and the attached exhibits are
incorporated herein by reference. When petitioner filed his
petition, he resided in Pennsylvania.
Petitioner timely filed his Federal income tax return for
2007 as a head of household. On his return he claimed: (1) Two
dependency exemption deductions; (2) the earned income tax
credit; and (3) a child tax credit and an additional child tax
credit. Respondent issued to petitioner a notice of deficiency
changing petitioner’s filing status to single and disallowing the
claimed deductions and credits.1
In 2007 petitioner lived with the mother of the two children
he claimed as dependents on his 2007 Federal income tax return.
1
At trial petitioner conceded that he is not entitled to
head of household filing status, the earned income tax credit, or
the child tax credit and additional child tax credit.
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He was not the biological father of the children, nor was he
married to their mother.
Discussion
I. Burden of Proof
Generally, the Commissioner’s determinations are presumed
correct, and the taxpayer bears the burden of proving that those
determinations are erroneous.2 Rule 142(a); see INDOPCO, Inc. v.
Commissioner, 503 U.S. 79, 84 (1992); Welch v. Helvering, 290
U.S. 111, 115 (1933).
Deductions and credits are a matter of legislative grace,
and the taxpayer bears the burden of proving that he or she is
entitled to any deduction or credit claimed. Rule 142(a); Deputy
v. du Pont, 308 U.S. 488, 493 (1940); New Colonial Ice Co. v.
Helvering, 292 U.S. 435, 440 (1934).
II. Dependency Exemption Deduction
Section 151(c) allows a taxpayer to deduct an annual
“exemption amount for each individual who is a dependent (as
defined in section 152) of the taxpayer for the taxable year.”
Section 152(a) defines dependent as a “qualifying child” or a
“qualifying relative.” Petitioner is not related to the children
and they are not his qualifying children; however, he contends
2
Petitioner has not claimed or shown that he meets the
requirements under sec. 7491(a) to shift the burden of proof to
respondent as to any factual issue relating to his liability for
tax.
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that the children are his qualifying relatives under section
152(d).
In pertinent part, section 152(d) provides that an
individual is a qualifying relative of the taxpayer if: (1) That
individual has the same principal place of abode as the taxpayer
and is a member of the taxpayer’s household; (2) the taxpayer
provides over one-half of the individual’s support for that year;
and (3) that individual is not the qualifying child of the
taxpayer or of any other taxpayer for that year. Sec. 152(d)(1)
and (2)(H). Respondent stipulates that the children lived with
petitioner during the year and that the children did not earn
income in 2007.
Petitioner’s girlfriend, who is the mother of the children
and with whom petitioner lived in 2007, was entitled to claim the
children as her qualifying children in 2007. See sec. 152(c)(1).
Accordingly, these children are not petitioner’s qualifying
relatives for 2007, and respondent’s determination is sustained.
See sec. 152(d)(1)(D).
To reflect the foregoing,
Decision will be entered
for respondent.