Alfred Castro Espinoza, Petitioner

T .C .°Summary'Opinion 2008=11 2

UNITED STATES TAX COUR T

ALFRED CASTRO ESPINOZA, Petitioner v . COMMISSIONER OF INTERNAL REVENUE, Responden t .Docket No . 12391-07S . Filed August 28, 2008 .

Alfred Castro Espinoza, 'pro se .

Nina S .' Kanq , for respondent .

DEAN, Special Trial-Judge This case was .heardpursuant_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 ,

SERVED AUG 2 8 2008

-and all'Rule references are to the Tax Court Rules of Practic e and Procedure .

Respondent denied petitioner's dependency exemption deductions and head of household filing status, determining a $2,475 deficiency in petitioner's 2005 Federal income :tax . The issues_for .decision are whether petitioner is entitled to claim :

(1) Dependency exemption . deductions, for, AR and hJR ; l and (2) hea d of household filing status .

Backgroun d Some of the facts have been stipulated and are so found .

The stipulation of facts and the exhibits received into evidence are incorporated herein by reference . When the . petition was filed, petitioner . resided in California .

.

Petitioner filed a Form 1040, U .S . Individual Income Tax Return, for 2005 . He claimed dependency.-exemption deductions fo r JR and AR and filed as a head of household . JR-and AR are the children of petitioner's then girlfriend ;2 he is not related to the children by blood . In 2005 petitioner was not related to .JR and AR by marriage, he had not- .legally adopted the children, and they were not his eligible fosterschildren .

'The Court refers to minor children by their initials . See Rule 27(a)(3) . The evidence . in the record indicates that the children were 9 and 7 years old in 2005 .

2Petitioner and his former girlfriend are now husband an d wife .

Discussion.

I . Burden of Proof .

The Commissioner's determinations in~a .notice of deficiency are presumed correct,-and the taxpayer bears-the burden'to .prove that the determinations are .-in error .' See-Rule 142(a) ; . Welch v .

Helvering , 290 U .S . 111 ; '115(1933) But the burden of proof(cid:127)on factual issues that affect the taxpayer's tax liability mayb e shifted to the Commissioner where the "taxpayer introduce s credible evidence with respect to * * * such issue ." See sec .

7491(a)(1) . Petitioner has not alleged that -section 7491(a)- applies ; however,--the Court'need not decide whether,t:he burden shifted to respondent since the Court's analysis-is based on the record before it and not on who bears the .burdenwof proof .

II .` Dependency Exemption Deduction s Section 151(c) allows :a taxpayer to claim as a deduction the exemption amount for each individual who is a "dependent" of the taxpayer as defined in section 152 . Section .152(a) provides that the term "dependent" includes'a ,"qualifying child" or "qualifying relative ." A qualifying child -is a child who bears a certai n relationship to the taxpayer . Sec . 152(c)(l)-(A) . The - relationship exists if the claimed dependent is the taxpayer's :, (1) Child or descendant of-such-child ; or (2) brother, sister, stepbrother, stepsister, or a descendant of any-suchrelative .

Sec . 152(c)(2) . The term ."child" means an . individual who . is the 4 - taxpayer's son, daughter, stepson, or stepdaughter, an adopted individual, or an "eligible foster child" . Sec . 152(f)(1) .

Petitioner is not related to~JR=or,ARby blood .

. .~In 2005 he was not related to JR,or .AR by marriage, he wasanot their - adoptive .parent, and they were not his eligible foster children .

Petitioner has failed to establish that either JR or AR is his, qualifying child.

In pertinent part, section 152(d,)(1)(D),defines a qualifying relative as an individual who is not a qualifying child of any other taxpayer for the taxable year .

JR and AR are qualifying children of their mother .3See, sec . 152(c)(1), (2) (A) .(3) . Thus, JR and AR are not petitioner's qualifying relatives= See sec . 152 (d) (1) (D) .

On the basis of the foregoing, petitioner is not entitled to a dependency exemption deduction .for JRor AR, and respondent .'s determination .is sustained .

III .

Head of Household Filing Status .

A is relevant here, sect-ion 2 (b) (1) . . defines "head of a household" as an unmarried individual who : maintains as his home a household that' constitutes for more than one-half of the taxable year the principal place of abode of a qualifying child o r qualifying relative of the .taxpayer . JR and AR are not

Whittier, Cal . Petitioner resided in Bakersfield, Cal ., during the week and commuted to Whittier, Cal ., on his days off .

petitioner's qualifying children or qualifying relatives . Thus, petitioner is not entitled to head of household filing status for 2005, and respondent's determination is sustained .

To reflect the foregoing ., Decision will be entered fo r respondent .