Mohamed A. Kaviro v. Commissioner

T.C. Summary Opinion 2018-57UNITED STATES TAX COURT
MOHAMED A. KAVIRO, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket Nos. 26634-16S, 6266-17S.1 Filed December 6, 2018.
Mohamed A. Kaviro, pro se.
Janet F. Appel and Aaron M. Greenberg, for respondent.
SUMMARY OPINION
GUY, Special Trial Judge: These cases were heard pursuant to the
provisions of section 7463 of the Internal Revenue Code in effect when the
1
These cases were consolidated for purposes of trial, briefing, and opinion.
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petitions were filed.2 Pursuant to section 7463(b), the decisions to be entered are
not reviewable by any other court, and this opinion shall not be treated as
precedent for any other case.
Respondent issued separate notices of deficiency to petitioner determining
Federal income tax deficiencies of $7,604 and $9,433 for the taxable years 2014
and 2015 (years in issue), respectively. Petitioner filed timely petitions for
redetermination with the Court. When the petitions were filed, he resided in
Maine.
The issues for decision for the taxable year 2014 are whether petitioner
(1) failed to report wages of $899 and gambling income of $1,600, (2) earned self-
employment income of $3,500, (3) is eligible for head of household filing status,
(4) is entitled to dependency exemption deductions for three children, (5) is
entitled to child tax credits, and (6) is entitled to the earned income credit (EIC).
The issues for decision for the taxable year 2015 are whether petitioner
(1) failed to report gambling income of $3,710, (2) is eligible for head of
2
Unless otherwise indicated, all section references are to the Internal
Revenue Code, as amended and in effect for the taxable years 2014 and 2015, and
all Rule references are to the Tax Court Rules of Practice and Procedure.
Monetary amounts are rounded to the nearest dollar.
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household filing status, (3) is entitled to dependency exemption deductions for
three children, (4) is entitled to child tax credits, and (5) is entitled to the EIC.
Background3
I. Petitioner’s Children
Petitioner first met Abdeia Hassan in Texas around 2006. While it is
unclear whether petitioner and Ms. Hassan ever lived together in Texas, they
eventually moved to Maine and lived together there for several years beginning in
2009. During the years in issue, however, petitioner and Ms. Hassan lived in
separate four-bedroom apartments in the same building.
Petitioner and Ms. Hassan had six children: S.M.A. born in 2006, twins Ha.
M.A. and Hu. M.A. born in 2008, U.M.A. born in 2009, M.M.A. born in 2011, and
Y.A. born in 2013.4 Petitioner’s three oldest children resided with him during the
years in issue. Although the monthly rent on petitioner’s apartment was set at
approximately $1,600 to $1,700, he actually paid rent of approximately $300 per
month, and the balance was subsidized under a Federal rental assistance program.
3
Some of the facts have been stipulated.
4
For privacy reasons, it is the Court’s policy to refer to minors by their
initials. See Rule 27(a)(3).
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Petitioner’s children received public assistance, including benefits from the
Supplemental Nutrition Assistance Program (SNAP) and Medicaid.
II. Petitioner’s Tax Returns
Petitioner and Ms. Hassan filed Federal income tax returns for the taxable
years 2008 and 2010-2013, claiming married filing jointly status. For the taxable
year 2009 petitioner filed a separate tax return and claimed head of household
filing status.
Petitioner filed Federal income tax returns for 2014 and 2015 reporting
wages of $10,734 and $16,975, respectively. He also reported self-employment
income of $3,500 for the taxable year 2014. In addition to the wages that
petitioner reported for the years in issue, he earned wages of $899 and collected
gambling winnings of $1,600 in 2014 and collected gambling winnings of $3,710
in 2015.
Discussion
Generally, the Commissioner’s determinations are presumed correct, and the
taxpayer bears the burden of proving that those determinations are erroneous.
Rule 142(a); 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 entitlement to any deduction or credit claimed. Rule 142(a); Deputy v.
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du Pont, 308 U.S. 488, 493 (1940); New Colonial Ice Co. v. Helvering, 292 U.S.
435, 440 (1934). Petitioner does not contend that the burden of proof should shift
to respondent in accordance with the provisions of section 7491(a)(1), and there is
no justification on this record for doing so.
I. Unreported Income
Section 61(a) provides that “gross income means all income from whatever
source derived”. Respondent determined that petitioner failed to report items of
income (wages of $899 and gambling income of $1,600 for 2014 and gambling
income of $3,710 for 2015) as reported to respondent by third-party payors on
Form W-2, Wage and Tax Statement, and Forms W-2G, Certain Gambling
Winnings.
Section 6201(d) provides that the Commissioner in certain circumstances
cannot rely on information returns alone to establish unreported income but “shall
have the burden of producing reasonable and probative information” in addition
thereto. This provision applies only where the taxpayer “asserts a reasonable
dispute with respect to any item of income reported on an information return” and
only if “the taxpayer has fully cooperated with the Secretary”. Id.There is no indication that petitioner cooperated with respondent at any
stage of these cases. Moreover, petitioner offered no testimony or other evidence
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suggesting that he did not receive the items of income in question. On this record,
we sustain respondent’s determinations regarding the items of unreported income.
II. Self-Employment Income
Respondent determined that petitioner did not earn self-employment income
of $3,500 as reported on his tax return for 2014. Respondent’s determination that
petitioner did not earn self-employment income is related to the EIC (discussed in
greater detail below)--a credit which is computed as a percentage of the taxpayer’s
“earned income”. Sec. 32(a)(1).
Petitioner offered no testimony or business records in an effort to
substantiate the self-employment income, and therefore respondent’s
determination is sustained.
III. Filing Status
Section 1(b) provides a special tax rate for an individual who qualifies for
head of household filing status. Section 2(b)(1) generally defines a head of
household as an individual taxpayer who: (1) is unmarried as of the close of the
taxable year and is not a surviving spouse; and (2) maintains as his home a
household that constitutes for more than one-half of the taxable year the principal
place of abode, as a member of such household, of (a) a qualifying child of the
individual (as defined in section 152(c), determined without regard to section
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152(e)), or (b) any other person who is a dependent of the taxpayer, if the taxpayer
is entitled to a deduction for the taxable year for such person under section 151.
See Rowe v. Commissioner, 128 T.C. 13, 16-17 (2007).
Section 1.2-2(c)(1), Income Tax Regs., provides that a taxpayer is
considered to have maintained a household if he and a qualifying child actually
occupied the household for the entire taxable year. Section 1.2-2(d), Income Tax
Regs., further provides that a taxpayer is considered to have maintained a
household only if he paid more than one-half the costs thereof for the taxable year.
The costs of maintaining a household are the expenses incurred for the mutual
benefit of the occupants, including property taxes, mortgage interest, rent, utility
charges, upkeep and repairs, property insurance, and food consumed on the
premises. Id.Respondent determined that petitioner did not qualify for head of household
filing status during the years in issue (and assigned him married filing separate
status) on the alternative grounds that he had entered into a common law marriage
with Ms. Hassan and that he failed to show that he paid more than one-half of the
costs of maintaining a household that was the principal place of abode of a
qualifying child.
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A. Common Law Marriage
State law determines the marital status of taxpayers for purposes of the
Federal tax laws. Von Tersch v. Commissioner, 47 T.C. 415, 419 (1967). In
general, whether a taxpayer is married for purposes of the Federal income tax is
determined at the close of each tax year. Sec. 7703(a)(1).
Although the State of Texas recognizes common law marriages, see Tex.
Fam. Code Ann. sec. 2.401(a) (West 2006), there is no persuasive evidence in the
record to support the proposition that the relationship between petitioner and
Ms. Hassan was a legal and valid common law marriage at anytime relevant to
these proceedings. In short, while petitioner and Ms. Hassan once lived in Texas,
there is no evidence that they agreed to be married or that they ever lived together
there. Petitioner testified credibly that he never believed he was married to
Ms. Hassan and that he did not understand the implications arising from filing
joint Federal income tax returns with her.
Moreover, petitioner resided in Maine throughout the years in issue.
Common law marriages are not recognized as valid under the laws of Maine.
Pierce v. Sec’y of U.S. Dep’t of Health, Educ. & Welfare, 254 A.2d 46 (Me.
1969). In any event he did not cohabit with Ms. Hassan during the years in issue,
nor is there any indication that he represented to others that he was married to her.
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On this record, we conclude that petitioner was not married during the years in
issue.
B. Household Support
As discussed in detail below, we conclude that petitioner’s three oldest
children were his qualifying children within the meaning of section 152(c) during
the years in issue. We nevertheless agree with respondent that petitioner failed to
establish that he provided over one-half of the cost of maintaining the apartment in
which he and the children resided. See sec. 1.2-2(d), Income Tax Regs. As an
initial matter, petitioner failed to establish the total cost of maintaining the
apartment. The record reflects that petitioner’s rent was heavily subsidized, and
there is no evidence of his actual contribution to other household expenses such as
utilities and food consumed on the premises. See, e.g., Huynh v. Commissioner,
T.C. Memo. 2002-237. Consequently, respondent’s determination that petitioner
is not eligible for head of household filing status is sustained.
IV. Dependency Exemption Deductions
Section 151(c) provides that a taxpayer generally is allowed a deduction for
the applicable exemption amount for each individual who is a dependent. Section
152(a) defines the term “dependent” in relevant part to include a “qualifying
child”.
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Section 152(c) generally defines a “qualifying child” as an individual who
(1) bears a specified relationship to the taxpayer (e.g., a child of the taxpayer),
(2) has the same principal place of abode as the taxpayer for more than one-half of
such taxable year, (3) meets certain age requirements (e.g., has not attained the age
of 19), (4) has not provided over one-half of such individual’s own support for the
taxable year at issue, and (5) has not filed a joint return for that year. Sec.
152(c)(1).
As previously mentioned, petitioner claimed dependency exemption
deductions for his three oldest children. There is no dispute that the children
satisfied the relationship and age requirements of section 152(c)(1)(A) and (C).
Likewise, none of the children filed a joint tax return during the years in issue.
See sec. 152(c)(1)(E). Petitioner testified, and apartment rental records and
medical records indicate, that the children lived with petitioner throughout the
taxable years in issue. See sec. 152(c)(1)(B).
The question that remains is whether any of the children provided over one-
half of his or her own support within the meaning of section 152(c)(1)(D). In
addressing this issue, a taxpayer must establish the total cost of monetary
“support” expended on behalf of a claimed dependent from all sources for the
relevant year. Sec. 1.152-1(a)(2)(i), Income Tax Regs. The term “support”
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includes items such as “food, shelter, clothing, medical and dental care, education,
and the like.” Id. To determine whether an individual provided more than one-
half of the support for himself or herself, the amount of support provided by the
individual is compared to the individual’s total amount of support. Id. subdiv. (ii).
Petitioner did not testify or provide other evidence that would establish the
total amount of support expended on behalf of any of the children in question. He
did state, however, that the children received various forms of public assistance
including SNAP payments and healthcare services through Medicaid. As
previously mentioned, the record also shows that petitioner’s rent was heavily
subsidized. Considering all the facts and circumstances, the Court finds that the
children, all under the age of 10 during the years in issue, did not provide over
one-half of the total amount of support that each received during the years in issue.
See, e.g., Pavia v. Commissioner, T.C. Memo. 2008-270. Accordingly, petitioner
is entitled under section 151 to dependency exemption deductions for the three
children for the years in issue.
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V. Child Tax Credit
Section 24(a) and (c)(1) provides that a taxpayer is entitled to a child tax
credit with respect to “each qualifying child”, as defined in section 152(c), who
has not attained age 17 and for whom the taxpayer is allowed a deduction under
section 151. Section 24(d) provides that a portion of the child tax credit
(commonly referred to as the additional child tax credit) may be refundable.
As discussed above, the children in question were petitioner’s “qualifying
children” for purposes of section 152(c) and satisfy the age limitation under
section 24. Therefore, petitioner is entitled to child tax credits for the years in
issue.
VI. Earned Income Credit
Section 32(a)(1) allows an eligible individual an EIC against income tax in
an amount equal to the credit percentage of so much of the individual’s earned
income for the taxable year as does not exceed the earned income amount. The
term “earned income” is defined in section 32(c)(2)(A) and includes wages and net
earnings from self-employment. For taxable years beginning after 2008 and
before 2018, the credit percentage in the case of a taxpayer with three or more
qualifying children is 45%. Sec. 32(b)(3)(A). A taxpayer claiming the EIC must
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establish that he had earned income and the amount of that income. See, e.g.,
Blore v. Commissioner, T.C. Memo. 2000-326.
Section 32(c)(1)(A)(i) defines an “eligible individual” in relevant part as an
individual who has a qualifying child for the taxable year. The term “qualifying
child” is defined in section 32(c)(3)(A) to mean a qualifying child of the taxpayer
(as defined in section 152(c), determined without regard to paragraph (1)(D)
thereof and section 152(e)).
On this record, we conclude that petitioner is an eligible individual within
the meaning of section 32(c)(1)(A)(i). In particular, petitioner’s three children are
qualifying children under section 152(c) and his wages (as opposed to the
incorrectly reported self-employment income) constitute earned income.
Accordingly, petitioner is entitled to earned income credits for the years in issue
based on the wages that he earned.
To reflect the foregoing,
Decisions will be entered
under Rule 155.