Horsley v. Comm'r , 97 T.C.M. 1198 ( 2009 )

T.C. Memo. 2009-47
UNITED STATES TAX COURT
PATRICIA ANN HORSLEY, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 4853-07. Filed March 2, 2009.
Patricia Ann Horsley, pro se.
Timothy B. Heavner, for respondent.
MEMORANDUM FINDINGS OF FACT AND OPINION
CHIECHI, Judge: Respondent determined deficiencies of
$2,876 and $2,870 in petitioner’s Federal income tax (tax) for
her taxable years 2004 and 2005, respectively.
The issues for decision for each of petitioner’s taxable
years 2004 and 2005 are:
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(1) Is petitioner entitled to a dependency exemption deduc-
tion under section 151(a)1 for her granddaughter REU? We hold
that she is not.
(2) Is petitioner entitled to head of household filing
status under section 2(b)? We hold that she is not.
(3) Is petitioner entitled to the child tax credit under
section 24(a)? We hold that she is not.
(4) Is petitioner entitled to the earned income tax credit
under section 32(a)? We hold that she is not.
FINDINGS OF FACT
Some of the facts in this case have been stipulated by the
parties and are so found.
At the time petitioner filed the petition, she resided in
Richmond, Virginia.
Petitioner is the maternal grandmother of REU, who was born
in 1991. Petitioner’s daughter, Shelley L. Urban (Ms. Urban), is
the mother of REU. The paternal grandparents of REU are Edgar
and Helen Urban (Urbans).
From July 7, 1998, until April 19, 2004, Ms. Urban main-
tained sole custody of REU. At no time during 2004 or 2005 did
petitioner have custodial rights to REU.
1
All section references are to the Internal Revenue Code in
effect for each of the years at issue. All Rule references are
to the Tax Court Rules of Practice and Procedure.
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On April 19, 2004, Ms. Urban and the Urbans executed a
document entitled “CONSENT AGREEMENT” (custody agreement) in
connection with a proceeding regarding REU in the Juvenile and
Domestic Relations District Court of Chesterfield County, Vir-
ginia (district court). (We shall refer to the proceeding in the
district court as the custody case.) The custody agreement,
which was part of the district court’s record in the custody
case, provided (1) joint legal custody of REU to Ms. Urban and
the Urbans and (2) primary physical custody of REU to the Urbans.
On the same date on which Ms. Urban and the Urbans executed
the custody agreement, Ms. Urban, the Urbans, and Brian Urban,
REU’s father, executed a second document entitled “CONSENT
AGREEMENT” (the visitation agreement) in connection with the
custody case. The visitation agreement, which was part of the
district court’s record in the custody case, terminated all of
petitioner’s rights to visitation with REU.
During 2004 and 2005, petitioner paid at least $1,575.62 and
$485.67, respectively, for the support of REU. During each of
those years, Ms. Urban also provided an unidentified amount of
support for REU.
Petitioner timely filed Form 1040, U.S. Individual Income
Tax Return (tax return), for each of her taxable years 2004 and
2005. In each of those tax returns, petitioner claimed (1) head
of household filing status, (2) a dependency exemption deduction
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for REU, (3) the child tax credit, and (4) the earned income tax
credit.
Respondent issued to petitioner a separate notice of defi-
ciency (notice) for each of petitioner’s taxable years 2004 and
2005 (collectively, notices). In each of those notices, respon-
dent, inter alia, disallowed petitioner’s claimed (1) head of
household filing status, (2) dependency exemption deduction for
REU, (3) child tax credit, and (4) earned income tax credit.
OPINION
Petitioner has the burden of establishing that the determi-
nations in each of the notices are wrong. See Rule 142(a); Welch
v. Helvering, 290 U.S. 111, 115 (1933).
In support of her position with respect to each of the
issues presented in this case, petitioner relies primarily on her
own testimony. We found that testimony to be in certain material
respects conclusory, vague, uncorroborated, and self-serving. We
are not required to, and we shall not, rely on petitioner’s
testimony in order to establish her respective positions with
respect to the issues presented. See, e.g., Tokarski v. Commis-
sioner, 87 T.C. 74, 77 (1986).
Dependency Exemption Deduction
Section 151(a) provides that “the exemptions provided by
this section shall be allowed as deductions” to a taxpayer.
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Section 151(c) provides an exemption for each dependent of the
taxpayer as defined in section 152.
As pertinent here for petitioner’s taxable year 2004,
section 152(a) defines the term “dependent” to mean a person
“over half of whose support * * * was received from the tax-
payer”, but only if that person is, inter alia, “A son or daugh-
ter of the taxpayer, or a descendant of either” or “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.” Sec. 152(a)(1), (9).
As pertinent here for petitioner’s taxable year 2005,
section 152(a) defines the term “dependent” to mean either a
qualifying child or a qualifying relative.
Section 152(c) defines the term “qualifying child” 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
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(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 grandchild of the taxpayer. See sec. 152(c)(2)(A). For
purposes of section 152(c)(1)(C), an individual meets the age
requirements if that individual is under age 19. Sec.
152(c)(3)(A)(i).
Section 152(d) defines the term “qualifying relative” 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.
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As pertinent here, for purposes of section 152(d)(1)(A) an
individual bears a relationship to the taxpayer if that individ-
ual is a grandchild of the taxpayer, see sec. 152(d)(2)(A), or is
“An individual * * * 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”, see sec. 152(d)(2)(H).
The only disputes between the parties as to whether peti-
tioner is entitled to a dependency exemption deduction for REU
for each of her taxable years 2004 and 2005 are: (1) Did peti-
tioner provide more than one-half of REU’s total support
(a) during 2004, as required for REU to satisfy the definition of
a dependent in section 152(a), and (b) during 2005, as required
for REU to satisfy the definition of a dependent in section
152(a)(2) as a qualifying relative under section 152(d), see sec.
152(d)(1)(C)? (2) Did REU have the same principal place of abode
as petitioner for more than one-half of petitioner’s taxable year
2005, as required for REU to satisfy the definition of a depend-
ent in section 152(a)(1) as a qualifying child under section
152(c)?2 See sec. 152(c)(1)(B).
We turn first to whether petitioner provided more than one-
half of REU’s total support during each of her taxable years 2004
and 2005. In order to establish that she did, petitioner must
2
Except as discussed below, our resolution of the parties’
disputes with respect to petitioner’s claimed dependency exemp-
tion deduction for each year at issue resolves the other issues
presented in this case.
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establish (1) the total amount of support from all sources
provided to REU during each year at issue and (2) that petitioner
provided over one-half of that total amount during each of those
years. See Archer v. Commissioner, 73 T.C. 963, 967 (1980);
Blanco v. Commissioner, 56 T.C. 512, 514-515 (1971); sec. 1.152-
1(a)(2)(i), Income Tax Regs.
The term “support” includes food, shelter, clothing, medical
and dental care, education, and the like. Sec. 1.152-1(a)(2)(i),
Income Tax Regs. The total amount of support for each claimed
dependent provided by all sources during the year in question
must be shown by competent evidence. Blanco v. Commissioner,
supra at 514. Where the total amount of support provided to a
child during the year in question is not shown, and may not
reasonably be inferred from competent evidence, it is not possi-
ble to find that the taxpayer contributed more than one-half of
that child’s total support. Id. at 514-515; Fitzner v. Commis-
sioner, 31 T.C. 1252, 1255 (1959).
We have found that during 2004 and 2005 petitioner paid at
least $1,575.62 and $485.67, respectively, for the support of
REU. Petitioner did not proffer evidence establishing (1) the
total amount of support that she provided to REU during each of
the years 2004 and 2005 and (2) the total amount of support from
all sources provided to REU during each of those years. Nor did
petitioner proffer evidence from which the Court might infer the
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total amount of support from all sources provided to REU during
each of the years at issue. On the record before us, we find
that petitioner has failed to carry her burden of establishing
that during each of the years at issue she provided more than
one-half of REU’s total support.
On the record before us, we find that petitioner has failed
to carry her burden of establishing for her taxable year 2004
that REU is her dependent as defined in section 152(a). On that
record, we further find that petitioner has failed to carry her
burden of establishing for her taxable year 2005 that REU is her
qualifying relative as defined in section 152(d), see sec.
152(d)(1)(C), and that therefore REU is her dependent as defined
in section 152(a)(2).
We now turn to whether REU had the same principal place of
abode as petitioner for more than one-half of petitioner’s
taxable year 2005, as required for REU to satisfy the definition
of a dependent in section 152(a)(1) as a qualifying child under
section 152(c). See sec. 152(c)(1)(B). We have found that from
July 7, 1998, until April 19, 2004, Ms. Urban, petitioner’s
daughter and REU’s mother, maintained custody of REU. We have
also found that at no time during 2004 or 2005 did petitioner
have custodial rights to REU.
In addition, we have found that on April 19, 2004, Ms. Urban
and the Urbans executed the custody agreement in connection with
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the custody case. That agreement, inter alia, provided primary
physical custody of REU to the Urbans. On the same date on which
Ms. Urban and the Urbans executed the custody agreement, Ms.
Urban, the Urbans, and Brian Urban executed the visitation
agreement in connection with the custody case. That agreement
terminated all of petitioner’s rights to visitation with REU.
Petitioner contends that a judge of the district court did
not sign the custody agreement and the visitation agreement and
that therefore that court did not approve those agreements. We
need not resolve whether the district court approved the custody
agreement and the visitation agreement. That is because even if,
as petitioner contends, it did not, on the record before us, we
find that petitioner has failed to carry her burden of establish-
ing that REU resided with her during any portion of 2005.3
On the record before us, we find that petitioner has failed
to carry her burden of establishing for her taxable year 2005
that she and REU had the same principal place of abode at any
time during that year. On that record, we further find that
petitioner has failed to carry her burden of establishing for her
taxable year 2005 that she and REU shared a principal place of
abode for more than one-half of that year. See sec.
3
At trial, petitioner testified that both REU and Ms. Urban
resided with her for more than six months during each of the
years 2004 and 2005. That testimony was the only evidence to
that effect. As discussed above, we are unwilling to rely on
petitioner’s testimony to establish her position on any of the
issues presented.
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152(c)(1)(B). On the record before us, we find that petitioner
has failed to carry her burden of establishing for her taxable
year 2005 that REU is her qualifying child as defined in section
152(c) and that therefore REU is her dependent as defined in
section 152(a)(1).
Based upon our examination of the entire record before us,
we find that petitioner has failed to carry her burden of estab-
lishing that she is entitled for each of her taxable years 2004
and 2005 to a dependency exemption deduction under section 151(a)
for REU.
Head of Household Filing Status
Section 1(b) provides a special tax rate for an individual
who qualifies as a head of household. As pertinent here, section
2(b)(1) provides that an unmarried individual “shall be consid-
ered a head of a household” if that individual “maintains as his
home a household which constitutes for more than one-half of such
taxable year the principal place of abode” of (1) for peti-
tioner’s taxable year 2004, a grandchild, see sec. 2(b)(1)(A)(i),
or any other dependent, see sec. 2(b)(1)(A)(ii), but in each case
only “if the taxpayer is entitled to a deduction for the taxable
year for such person under section 151”, sec. 2(b)(1)(A), and
(2) for petitioner’s taxable year 2005, “a qualifying child of
the individual (as defined in section 152(c) * * *)”, sec.
2(b)(1)(A)(i), or “any other person who is a dependent of the
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taxpayer, if the taxpayer is entitled to a deduction for the
taxable year for such person under section 151,” sec.
2(b)(1)(A)(ii).4
We have found that petitioner has failed to carry her burden
of establishing that she is entitled for each of her taxable
years 2004 and 2005 to a dependency exemption deduction under
section 151(a) for REU. We have also found that petitioner has
failed to carry her burden of establishing for her taxable year
2005 that REU is her qualifying child as defined in section
152(c). On the record before us, we find that petitioner has
failed to carry her burden of establishing that she is entitled
for each of her taxable years 2004 and 2005 to head of household
filing status under section 2(b).
Child Tax Credit
Section 24(a) provides a credit with respect to each quali-
fying child of the taxpayer.
For petitioner’s taxable year 2004, section 24(c) defines
the term “qualifying child” as follows:
SEC. 24. CHILD TAX CREDIT.
(c) Qualifying Child.--For purposes of this
section--
(1) In general.--The term “qualifying child”
means any individual if--
4
Sec. 2(b)(1)(A)(i) contains two limitations that deny head
of household filing status where the taxpayer has a qualifying
child. Neither of those limitations is applicable in this case.
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(A) the taxpayer is allowed a deduction
under section 151 with respect to such indi-
vidual for the taxable year,
(B) such individual has not attained the
age of 17 as of the close of the calendar
year in which the taxable year of the tax-
payer begins, and
(C) such individual bears a relationship
to the taxpayer described in section
32(c)(3)(B).
As pertinent here for purposes of section 24(c)(1)(C), a grand-
child bears a relationship to the taxpayer. See sec.
32(c)(3)(B)(i)(I).
For petitioner’s taxable year 2005, section 24(c)(1) defines
the term “qualifying child” as “a qualifying child of the tax-
payer (as defined in section 152(c)) who has not attained age
17.”
We have found that petitioner has failed to carry her burden
of establishing that she is entitled for, inter alia, her taxable
year 2004 to a dependency exemption deduction under section
151(a) for REU. We have also found that petitioner has failed to
carry her burden of establishing for her taxable year 2005 that
REU is her qualifying child as defined in section 152(c). On the
record before us, we find that petitioner has failed to carry her
burden of establishing for each of her taxable years 2004 and
2005 that REU is her qualifying child as defined in section
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24(c).5 On that record, we further find that petitioner has
failed to carry her burden of establishing that she is entitled
for each of those years to the child tax credit under section 24.
Earned Income Tax Credit
Section 32(a)(1) permits an eligible individual an earned
income credit against that individual’s tax liability.6 As
pertinent here, the term “eligible individual” is defined to mean
“any individual who has a qualifying child for the taxable year”.
Sec. 32(c)(1)(A)(i).
For petitioner’s taxable year 2004, section 32(c) defines
the term “qualifying child” as follows:
SEC. 32. EARNED INCOME.
(c) Definitions and Special Rules.--For purposes
of this section--
* * * * * * *
(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),
5
The parties do not dispute that REU was under age 17 in
2005.
6
The amount of the credit is determined according to per-
centages that vary depending on whether the taxpayer has one
qualifying child, two or more qualifying children, or no qualify-
ing children. Sec. 32(b). The credit is also subject to a
limitation based on adjusted gross income. Sec. 32(a)(2). See
infra note 8.
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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 require-
ments of subparagraph (C).
As pertinent here, for purposes of section 32(c)(3)(A)(i), a
grandchild bears a relationship to the taxpayer. Sec.
32(c)(3)(B)(i)(I). For purposes of section 32(c)(3)(A)(iii), an
individual who has not attained age 19 meets the age requirement.
Sec. 32(c)(3)(C)(i).
For petitioner’s taxable year 2005, section 32(c)(3)(A)
defines the term “qualifying child” to mean “a qualifying child
of the taxpayer (as defined in section 152(c) * * *)”.
With respect to petitioner’s taxable year 2005, we have
found that petitioner has failed to carry her burden of estab-
lishing that REU is her qualifying child as defined in section
152(c). With respect to petitioner’s taxable year 2004, on the
record before us, we find that petitioner has failed to carry her
burden of establishing that REU resided with her during any
portion of that year.7 On the record before us, we further find
that petitioner has failed to carry her burden of establishing
for her taxable year 2004 that she and REU had the same principal
place of abode at any time during that year. On that record, we
further find that petitioner has failed to carry her burden of
7
See supra note 3.
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establishing for her taxable year 2004 that she and REU had the
same principal place of abode for more than one-half of the year.
On the record before us, we find that petitioner has failed
to carry her burden of establishing for each of her taxable years
2004 and 2005 that REU is a qualifying child as defined in
section 32(c)(3). On that record, we further find that peti-
tioner has failed to carry her burden of establishing for each of
those years that she is an eligible individual as defined in
section 32(c)(1)(A)(i). On the record before us, we find that
petitioner has failed to carry her burden of establishing that
she is entitled for each of her taxable years 2004 and 2005 to
the earned income tax credit under section 32(a).8
We have considered all of petitioner’s contentions and
arguments that are not discussed herein, and we find them to be
without merit, irrelevant, and/or moot.
8
Assuming arguendo that petitioner were an eligible individ-
ual as defined in sec. 32(c)(1)(A)(ii) for each of her taxable
years 2004 and 2005, she nonetheless would not be entitled to the
earned income tax credit for each of those years. That is
because petitioner reported adjusted gross income for her taxable
years 2004 and 2005 of $24,643 and $25,493, respectively. Sec.
32(a)(2) completely phases out the earned income tax credit for
an eligible individual with no qualifying children where the
taxpayer has adjusted gross income in excess of $11,490 for the
taxable year 2004, see Rev. Proc. 2003-85, sec. 3.06(1), 2003-2
C.B. 1184, 1187, and in excess of $11,750 for the taxable year
2005, see Rev. Proc. 2004-71, sec. 3.06(1), 2004-2 C.B. 970, 973.
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To reflect the foregoing,
Decision will be entered
for respondent.