                          T.C. Memo. 2008-160



                         UNITED STATES TAX COURT



                   ROBERT M. DANIELS, Petitioner v.
             COMMISSIONER OF INTERNAL REVENUE, Respondent



       Docket No. 6646-07.               Filed June 24, 2008.



       Robert M. Daniels, pro se.

       Michele A. Yates and Ann M. Welhaf, for respondent.



               MEMORANDUM FINDINGS OF FACT AND OPINION


       CHIECHI, Judge:    Respondent determined a deficiency of

$4,325 in petitioner’s Federal income tax (tax) for his taxable

year 2005.

       The issues for decision for petitioner’s taxable year 2005

are:
                                - 2 -

       (1) Is petitioner entitled under section 1511 to a depend-

ency exemption deduction for any of his three sons Robert M.

Daniels, Jr., GGD, and AZG?    We hold that he is not.

       (2) Is petitioner entitled under section 2(b) to head of

household status?    We hold that he is not.2

       (3) Is petitioner entitled under section 24 to a child tax

credit with respect to any of his three sons Robert M. Daniels,

Jr., GGD, and AZG?    We hold that he is not.

                          FINDINGS OF FACT

       At the time petitioner filed the petition, he resided in

Texas.

       Robert M. Daniels, Jr. (Junior), who was born on January 15,

1985, GGD, who was born on June 16, 2002, and AZG, who was born

on July 29, 2003, are petitioner’s biological sons.      (We shall

sometimes refer collectively to Junior, GGD, and AZG as peti-

tioner’s sons.)    Alesa Goosby is the biological mother of GGD and

AZG.




       1
      All section references are to the Internal Revenue Code in
effect for the year at issue. All Rule references are to the Tax
Court Rules of Practice and Procedure.
       2
      The Court’s resolution of petitioner’s filing status con-
trols the amount of the standard deduction under sec. 63(c)(1)
and (2) to which petitioner is entitled for his taxable year
2005. See infra note 3.
                                - 3 -

     During 2005, petitioner worked as a bus operator for the

following three companies:   Startran, Inc., First Transit Trans-

portation, LLC, and ATC/Vancom, Inc.

     Alesa Goosby was the custodial parent of GGD and AZG until

early in 2004.    At no time was petitioner the custodial parent of

GGD or AZG.   Nor did petitioner have at any time an agreement

with Alesa Goosby regarding custody or visitation of GGD and AZG.

Alesa Goosby never signed Form 8332, Release of Claim to Exemp-

tion for Child of Divorced or Separated Parents, to allow peti-

tioner to claim GGD or AZG as a dependent.

     On January 2, 2004, Protective Services for the Family

Department of the State of Texas (Texas Protective Services)

removed GGD and AZG from the home of Alesa Goosby, the custodial

parent.   Thereafter, those children were placed in foster care.

In 2005, Alesa Goosby’s parental rights with respect to GGD and

AZG were terminated.

     None of petitioner’s sons lived with petitioner during 2005.

During that year, petitioner made child support payments for GGD

and AZG to (1) Alesa Goosby in the amount of $461.60 and

(2) Texas Protective Services in the amount of $2,850.06.   By

August 2005, petitioner stopped having to make payments to either

Alesa Goosby or Texas Protective Services for the support of

those children.
                              - 4 -

     Petitioner timely filed Form 1040A, U.S. Individual Income

Tax Return, for his taxable year 2005 (2005 return).    In that

return, petitioner reported wages of $41,701 and claimed

(1) dependency exemption deductions for Junior, GGD, and AZG,

(2) head of household filing status, and (3) a child tax credit.

     Alesa Goosby did not claim GGD or AZG as a dependent in a

tax return for her taxable year 2005.

     Respondent issued to petitioner a notice of deficiency for

his taxable year 2005 (2005 notice).    In that notice, respondent

disallowed (1) the dependency exemption deductions for Junior,

GGD, and AZG, (2) head of household filing status, and (3) the

child tax credit that petitioner claimed in his 2005 return.3

                             OPINION

     Petitioner has the burden of establishing that he is enti-

tled for his taxable year 2005 to (1) dependency exemption

deductions for Junior, GGD, and AZG, (2) head of household filing

status, and (3) a child tax credit.4    See Rule 142(a); Welch v.

Helvering, 290 U.S. 111, 115 (1933).




     3
      In the 2005 notice, respondent also made a correlative
adjustment to the standard deduction that petitioner claimed in
his 2005 return. See supra note 2.
     4
      Neither party addresses sec. 7491(a). On the record before
us, we conclude that the burden of proof does not shift to
respondent with respect to any of the factual issues in this
case. See sec. 7491(a)(1) and (2)(A) and (B).
                                - 5 -

     With respect to the claimed dependency exemption deductions,

as pertinent here, section 151 allows a taxpayer a dependency

exemption deduction for each individual who is a dependent of the

taxpayer for the taxable year within the meaning of section 152.

Sec. 151(a), (c).   Section 152(a) defines the term “dependent” to

mean a qualifying child or a qualifying relative.

     Section 152(c) defines the term “qualifying child” in

pertinent part as follows:

     SEC. 152.   DEPENDENT DEFINED.

          (c) Qualifying Child.--For purposes of this
     section--

               (1) In general.--The term “qualifying child”
          means, with respect to any taxpayer for any tax-
          able year, an individual--

                      (A) who bears a relationship to the
                 taxpayer described in paragraph (2),

                      (B) who has the same principal place of
                 abode as the taxpayer for more than one-half
                 of such taxable year,

                      (C) who meets the age requirements of
                 paragraph (3), and

                      (D) who has not provided over one-half
                 of such individual’s own support for the
                 calendar year in which the taxable year of
                 the taxpayer begins.

As pertinent here, for purposes of section 152(c)(1)(A), an

individual bears a relationship to the taxpayer if that individ-

ual is a child of the taxpayer.   Sec. 152(c)(2)(A).   For purposes

of section 152(c)(1)(C), an individual meets the age requirements
                                - 6 -

if such individual

               (i) has not attained the age of 19 as of the
          close of the calendar year in which the taxable
          year of the taxpayer begins, or

               (ii) is a student who has not attained the
          age of 24 as of the close of such calendar year.

          (B) Special rule for disabled.--In the case of an
     individual who is permanently and totally disabled (as
     defined in section 22(e)(3)) at any time during such
     calendar year, the requirements of subparagraph (A)
     shall be treated as met with respect to such individ-
     ual.

Sec. 152(c)(3)(A) and (B).

     Section 152(d) defines the term “qualifying relative” in

pertinent part as follows:

     SEC. 152.   DEPENDENT DEFINED.

          (d) Qualifying Relative.--For purposes of this
     section--

               (1) In general.--The term “qualifying rela-
          tive” means, with respect to any taxpayer for any
          taxable year, an individual--

                      (A) who bears a relationship to the
                 taxpayer described in paragraph (2),

                      (B) whose gross income for the calendar
                 year in which such taxable year begins is
                 less than the exemption amount (as defined in
                 section 151(d)),

                      (C) with respect to whom the taxpayer
                 provides over one-half of the individual’s
                 support for the calendar year in which such
                 taxable year begins, and

                      (D) who is not a qualifying child of
                 such taxpayer or of any other taxpayer for
                 any taxable year beginning in the calendar
                 year in which such taxable year begins.
                                   - 7 -

As pertinent here, for purposes of section 152(d)(1)(A), an

individual bears a relationship to the taxpayer if the individual

is a child of the taxpayer, sec. 152(d)(2)(A), or

            (H) An individual (other than an individual who at
       any time during the taxable year was the spouse, deter-
       mined without regard to section 7703, of the taxpayer)
       who, for the taxable year of the taxpayer, has the same
       principal place of abode as the taxpayer and is a
       member of the taxpayer’s household.

Sec. 152(d)(2)(H).

       We have found that none of petitioner’s sons lived with him

during 2005.       A fortiori, at no time during that year did peti-

tioner have the same principal place of abode as Junior,5 GGD, or

AZG.       On the record before us, we find that petitioner has failed

to carry his burden of establishing that any of petitioner’s sons

is a qualifying child within the meaning of section 152(c).6

       We have found that during 2005 petitioner paid child support

payments for GGD and AZG to (1) Alesa Goosby in the amount of

$461.60 and (2) Texas Protective Services in the amount of

$2,850.06.       However, petitioner has failed to carry his burden of

establishing the total support provided during that year for each

of those children.      Nor has petitioner established that during



       5
      In addition, petitioner has failed to establish that during
2005 Junior, who was 20 years old, was a student, see sec.
152(c)(3)(A)(ii), or was permanently and totally disabled, see
sec. 152(c)(3)(B).
       6
      On the instant record, we find that the special rule set
forth in sec. 152(c)(4) does not apply.
                               - 8 -

2005 he provided any support for Junior, let alone more than one-

half of Junior’s total support during that year.   On the record

before us, we find that petitioner has failed to carry his burden

of establishing that during 2005 he provided over one-half of the

total support of any of petitioner’s sons.   On that record, we

further find that petitioner has failed to carry his burden of

establishing that any of petitioner’s sons is a qualifying

relative within the meaning of section 152(d).7

     On the record before us, we find that petitioner has failed

to carry his burden of establishing that for his taxable year

2005 he is entitled under section 151 to dependency exemption

deductions for Junior, GGD, and AZG.

     With respect to the claimed head of household filing status

and the claimed child tax credit, we have found that at no time

during 2005 did petitioner have the same principal place of abode

as Junior, GGD, or AZG and that for petitioner’s taxable year

2005 none of petitioner’s sons is a qualifying child within the

meaning of section 152(c).   On the record before us, we find that

petitioner has failed to carry his burden of establishing that




     7
      On the instant record, we find that none of petitioner’s
sons has a relationship to petitioner described in sec.
152(d)(2)(H). On that record, we further find that the special
rules set forth in sec. 152(d)(3), (4), and (5) do not apply.
                                 - 9 -

for his taxable year 2005 he is entitled under section 2(b)8 to

head of household status.     On that record, we further find that

petitioner has failed to carry his burden of establishing that

for his taxable year 2005 he is entitled under section 249 to a


     8
      Sec. 2 provides in pertinent part:

     SEC. 2.    DEFINITIONS AND SPECIAL RULES.

             (b) Definition of Head of Household.--

                  (1) In general.--For purposes of this
             subtitle, an individual shall be considered a head
             of a household if, and only if, such individual is
             not married at the close of his taxable year, is
             not a surviving spouse (as defined in subsection
             (a)), and either--

                       (A) maintains as   his home a household
                  which constitutes for   more than one-half of
                  such taxable year the   principal place of
                  abode, as a member of   such household, of--

                            (i) a qualifying child of the
                       individual (as defined in section
                       152(c), determined without regard to
                       section 152(e)) * * *
     9
      Sec. 24 provides in pertinent part:

     SEC. 24.    CHILD TAX CREDIT.

          (a) Allowance of Credit.--There shall be allowed
     as a credit against the tax imposed by this chapter for
     the taxable year with respect to each qualifying child
     of the taxpayer an amount equal to $1,000.

         *        *       *        *        *       *       *

          (c) Qualifying Child.--For purposes of this
     section--


                                                        (continued...)
                             - 10 -

child tax credit.

     We have considered all of the contentions and arguments of

petitioner that are not discussed herein, and we find them to be

without merit, irrelevant, and/or moot.

     To reflect the foregoing,


                                      Decision will be entered for

                                 respondent.




     9
      (...continued)
               (1) In general.--The term “qualifying child”
          means a qualifying child of the taxpayer (as
          defined in section 152(c)) who has not attained
          age 17.
