1 Unless otherwise indicated, all section references are

to the Internal Revenue Code in effect for the taxable year in

issue. All Rule references are to the Tax Court Rules of

Practice and Procedure.

T.C. Memo. 1997-355

UNITED STATES TAX COURT

JAMES B. GOLDEN, JR. AND RAYLIENE GOLDEN, Petitioners v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 21417-96. Filed August 4, 1997.

James B. Golden, Jr., and Rayliene Golden, pro se.

Carmino J. Santaniello, for respondent. 

MEMORANDUM OPINION

DINAN, Special Trial Judge: This case was heard pursuant

to the provisions of section 7443A(b)(3) and Rules 180, 181, and

182.1
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2 Respondent concedes that petitioners are entitled to a

dependency exemption deduction for James Aiello, petitioner

wife's son from a previous marriage.

Respondent determined a deficiency in petitioners' Federal

income tax for 1995 in the amount of $1,400.

After a concession by respondent,2 the issue remaining for

decision is whether petitioners are entitled to an exemption

deduction for Miguel Angel Castellon Acosta (Miguel).

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

The stipulations of fact and attached exhibits are incorporated

herein by this reference. Petitioners resided in South Windsor,

Connecticut, on the date the petition was filed in this case.

Miguel arrived in the United States on December 6, 1995, as

a refugee from a migrant camp in Guantánamo Bay, Cuba. He was

sponsored by the Office of Migrant Services of the United States

Catholic Conference of the Archdiocese of Hartford, Connecticut.

Miguel was 20 years old when he arrived in the United States. 

His only belongings were the clothes he was wearing.

Petitioners welcomed Miguel into their home on December 6,

1995, and he presently still resides there. Since his arrival in

the United States, Miguel has obtained his graduate equivalency

diploma from East Catholic High School, has found a job that

provides him with medical benefits, and currently attends

Manchester Community College.

On the advice of their accountant, petitioners claimed an

exemption deduction for Miguel on their 1995 return.
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In the statutory notice of deficiency, respondent disallowed the

claimed deduction.

Respondent's determinations in the statutory notice of

deficiency are presumed to be correct, and petitioners bear the

burden of proving otherwise. Rule 142(a); Welch v. Helvering,

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

An individual taxpayer is allowed as a deduction in

computing taxable income an additional exemption for each

dependent as defined in section 152. Sec. 151(c)(1). A

dependent is generally defined as an individual who receives over

half of his support from the taxpayer in the calendar year in

which the taxpayer's taxable year begins. Sec. 152(a). 

Individuals listed under this general definition include, among

others, 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)(9).

Section 1.152-1(b), Income Tax Regs., provides that an

individual is treated as a member of the taxpayer's household

under section 152(a)(9) only if he lives with the taxpayer and is

a member of the taxpayer's household for the entire taxable year. 

Trowbridge v. Commissioner, 268 F.2d 208 (9th Cir. 1959), affg.

per curiam 30 T.C. 879 (1958); Douglas v. Commissioner, T.C.

Memo. 1994-519, affd. without published opinion 86 F.3d 1161 (9th

Cir. 1996).
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According to petitioners, their accountant relied upon

language in section 1.152-1(b), Income Tax Regs., that provides

that the period during the taxable year preceding the birth of an

individual does not prevent such individual from qualifying as a

dependent under section 152(a)(9). The accountant concluded that

Miguel's situation fell within this exception to the requirement

that an individual must be a member of the taxpayer's household

for the entire taxable year.

We disagree. The exception provided in section 1.152-1(b),

Income Tax Regs., clearly applies only to individuals born during

the taxable year. Miguel was not born during 1995. Since Miguel

was not a member of petitioners' household during the entire 1995

taxable year, we find that he does not qualify as petitioners'

dependent under section 152(a)(9). Moreover, petitioners

introduced no evidence of amounts paid for Miguel's support

during 1995. We find that they have failed to prove that they

provided more than half of Miguel's support during 1995. Rule

142(a).

Accordingly, we hold that petitioners are not entitled to an

exemption deduction for Miguel for 1995.

To reflect the foregoing,

Decision will be entered

under Rule 155.