                  T.C. Summary Opinion 2001-45



                     UNITED STATES TAX COURT



             RANDALL ALBERT FRITSCHER, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 6008-00S.              Filed April 3, 2001.




     Randall Albert Fritscher, pro se.

     Brandi B. Darwin, for respondent.


     ARMEN, 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.1    The decision to be

entered is not reviewable by any other court, and this opinion

should not be cited as authority.

     1
        Unless otherwise indicated, all section references are to
the Internal Revenue Code in effect for 1997, the taxable year in
issue.
                                - 2 -


     Respondent determined a deficiency in petitioner’s Federal

income tax for the taxable year 1997 in the amount of $2,673.

     The issues for decision are as follows:

     (1) Whether petitioner is entitled to dependency exemptions

for his two daughters.    We hold that he is not.

     (2) Whether petitioner is entitled to head-of-household

filing status.    We hold that he is not.

     (3) Whether petitioner is entitled to an earned income

credit.    We hold that he is not.

Background2

     Some of the facts have been stipulated, and they are so

found.    Petitioner resided in Keystone Heights, Florida, at the

time that his petition was filed with the Court.

     A. Petitioner’s Marriage and Divorce

     In June 1993, petitioner and Lee Ellen Phillips (Ms.

Phillips) were married in Duval County, Florida.    Three years

later, in June 1996, the couple separated.    Later that month,

petitioner commenced divorce proceedings.    On December 22, 1997,

the circuit court for Duval County, Florida (the Duval County

court) entered a Final Judgment of Dissolution of Marriage (the

divorce decree).


     2
        At trial, we deferred ruling on certain evidentiary
objections (relating principally to relevancy) that respondent
reserved in the stipulation of facts. We now overrule those
objections.
                                - 3 -


     B. Petitioner’s Children

     Petitioner and Ms. Phillips have two daughters, Kimberly

Brook Fritscher (Kimberly) and Michelle Ashley Fritscher

(Michelle). Kimberly was born in September 1991, and Michelle was

born in March 1994.

     C. Court Orders Regarding Legal Custody of the Children

     In September 1996, during the pendency of the divorce

proceedings between petitioner and Ms. Phillips, the Duval County

court issued an order granting Ms. Phillips’ motion for temporary

relief.   Specifically, the court ordered that petitioner and Ms.

Phillips should have “shared parental responsibility” for

Kimberly and Michelle.   Nevertheless, the court ordered: (1) The

“primary physical residence” of the children should be with Ms.

Phillips; (2) petitioner should have liberal visitation rights;

and (3) petitioner should pay child support to Ms. Phillips.

     In September 1997, the Duval County court issued an order

regarding petitioner’s motion for contempt.   In its order, the

court reserved jurisdiction on the issue whether Ms. Phillips was

in willful contempt “for failure to allow * * * [petitioner] to

have visitation and shared parental responsibility”.   However,

the court granted temporary custody of Kimberly and Michelle to

petitioner.

     In the divorce decree, the Duval County court continued to

direct that petitioner and Ms. Phillips should have “shared
                                - 4 -


parental responsibility”.   However, the court ordered: (1)

Petitioner should have the “primary physical residence and

custody of the children”; (2) Ms. Phillips should have both

liberal visitation rights and “the first option” with regard to

the children’s care; and (3) Ms. Phillips should pay child

support to petitioner.

     D. The Children’s Places of Abode

     Upon their separation in June 1996, petitioner moved into a

single-family house that was owned by his parents in Keystone

Heights, Florida, and Ms. Phillips moved into an apartment that

was maintained by her parents in Jacksonville, Florida.   Kimberly

and Michelle went with their mother and lived with her.

     In April 1997, Ms. Phillips moved into her own apartment in

Orange Park, Florida.    As before, Kimberly and Michelle went with

their mother and lived with her.

     At or about the time of his separation in June 1996,

petitioner was working for American Airlines at the Jacksonville

International Airport.   Subsequently, his post of duty was

changed to the Dallas/Ft. Worth International Airport, where he

worked as a troubleshooter.   Sometime in 1997, petitioner

resigned from the airline and went to work as a travel agent for

American Express in the Jacksonville area.3


     3
         One of the stipulated exhibits, a student registration
                                                    (continued...)
                               - 5 -


     As previously stated, the Duval County court granted

temporary custody of Kimberly and Michelle to petitioner in

September 1997.   At that time, the children moved into

petitioner’s home in Keystone Heights, Florida, and resided with

their father throughout the balance of the year.

     E. Petitioner’s 1997 Tax Return

     On his income tax return, Form 1040, for 1997, petitioner

claimed head-of-household filing status.   Petitioner also claimed

dependency exemptions for Kimberly and Michelle, and he

identified his daughters as qualifying children for purposes of

the earned income credit.

     F. The Notice of Deficiency

     Upon audit, respondent determined a deficiency in

petitioner’s income tax for 1997 in the amount of $2,673.   In

determining the deficiency, respondent: (1) Adjusted petitioner’s

filing status from head of household to single; (2) disallowed

the dependency exemptions for Kimberly and Michelle; and (3)

disallowed the earned income credit.




     3
      (...continued)
statement for Kimberly, discloses petitioner’s “business name and
address” as American Airlines, Dallas, TX. The statement is
dated May 14, 1997.
                                - 6 -


Discussion

     A. Dependency Exemptions for Kimberly and Michelle

     As relevant herein, a taxpayer is entitled to dependency

exemptions for his daughters if more than half of their support

is furnished by the taxpayer.   See secs. 151(c) and 152(a)(1).

     In the case of children whose parents are either divorced or

separated or who live apart at all times during the last 6 months

of the calendar year, section 152(e)(1) provides that the

custodial parent; i.e., the parent having custody for a greater

portion of the calendar year, is deemed to provide more than half

of the children’s support for such year.4    For purposes of this

rule, and as relevant herein, “custody” is determined by the

terms of the most recent decree of divorce or separate

maintenance, or subsequent custody decree.    Sec. 1.152-4(b),

Income Tax Regs.

     In the present case, Ms. Phillips had legal custody of

Kimberly and Michelle for a greater portion of 1997 by virtue of

the September 1996 order of the Duval County court.5

Accordingly, Ms. Phillips is considered to be the custodial



     4
       Exceptions to the general rule of sec. 152(e)(1) are not
applicable in the present case. See sec. 152(e)(2), (3), and
(4).
     5
       Indeed, at trial petitioner admitted that Ms. Phillips
“had the legal custody from the end of the summer of ‘96 until
Sept. 5, 1997.”
                               - 7 -


parent within the meaning of section 152(e)(1), and she is the

one who is deemed to have provided more than half of Kimberly’s

and Michelle’s support.   Petitioner is not, therefore, entitled

to dependency exemptions for his daughters in 1997.    Respondent’s

determination is sustained.

     B. Filing Status

     As relevant herein, an individual qualifies as a head of a

household if such individual (1) is not married at the close of

his taxable year and (2) maintains as his home a household that

constitutes for more than one-half of such taxable year the

principal place of abode, as members of such household, of his

daughters.6   See sec. 2(b)(1)(A).   The term “principal place of

abode” is synonymous with “home”.    Sec. 1.2-2(c)(1), Income Tax

Regs.

     The record demonstrates that Kimberly and Michelle lived

with Ms. Phillips, their mother, from January 1 through September

4, 1997, and that they lived with petitioner, their father, from

September 5 through December 31, 1997.    It is clear, therefore,

that petitioner did not maintain a home in 1997 that was his

daughters’ principal place of abode for more than one-half of the

taxable year.


     6
        If a taxpayer’s daughter is not married, it is not
necessary that the taxpayer be entitled to a dependency exemption
for her under sec. 151 in order to qualify for head-of-household
filing status. See sec. 2(b)(1)(A).
                                 - 8 -


     The fact that Kimberly and Michelle may not have enjoyed

ideal living arrangements with Ms. Phillips during the first 8

months of the year does not mean that their principal place of

abode was not with their mother.     See Cubick v. Commissioner,

T.C. Memo. 1977-102.

     In view of the foregoing, we hold that petitioner does not

qualify for head-of-household filing status in 1997.

Respondent’s determination is sustained.

     C. Earned Income Credit

     In the case of an eligible individual, section 32(a) allows

an earned income credit.    As relevant herein, the term “eligible

individual” means any individual who has a qualifying child for

the taxable year.7   Sec. 32(c)(1)(A)(i).     Also as relevant herein,

the term “qualifying child” means a daughter of the taxpayer who

has the same principal place of abode as the taxpayer for more

than one-half of the taxable year.       Sec. 32(c)(3)(A).

     The term “principal place of abode” as used in section

32(c)(3)(A) has essentially the same meaning as the term

“principal place of abode” as used in section 2(b)(1)(A).      Sec.

1.32-2(c)(1), Income Tax Regs.    Therefore, because we have

already decided that petitioner did not maintain a household that


     7
        An individual who does not have a qualifying child for
the taxable year may nevertheless qualify as an “eligible
individual”. Sec. 32(c)(1)(A)(ii). However, petitioner does not
so qualify because his income exceeded the statutory maximum.
                              - 9 -


was the principal place of abode of Kimberly and Michelle for

more than one-half of 1997, it follows that petitioner did not

have a “qualifying child” in 1997 and is not entitled to an

earned income credit for that year.    Respondent’s determination

is sustained.

Conclusion

     Reviewed and adopted as the report of the Small Tax Case

Division.

     In order to give effect to the foregoing,



                                      Decision will be entered

                              for respondent.
