T.C. Summary Opinion 2005-101

UNITED STATES TAX COURT

DANIEL J. ONORATI, Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 16224-04S. Filed July 21, 2005.

Daniel J. Onorati, pro se.

Alexandra E. Nicholaides, for respondent.

 DEAN, Special Trial Judge: This case was heard pursuant to

the provisions of section 7463 of the Internal Revenue Code. 

Unless otherwise indicated, section references are to the

Internal Revenue Code in effect for the year in issue, and all

Rule references are to the Tax Court Rules of Practice and

Procedure. The decision to be entered is not reviewable by any

other court, and this opinion should not be cited as authority.
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1The Court uses only the minor children’s initials.

Respondent determined a deficiency in petitioner’s Federal

income tax of $5,453 for 2002.

The issues for decision are: (1) Whether petitioner is

entitled to dependency exemption deductions; (2) whether

petitioner is entitled to head of household filing status; and

(3) whether petitioner is entitled to child tax credits.

Background

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

The stipulation of facts and exhibits received into evidence are

incorporated herein by reference. At the time the petition in

this case was filed, petitioner resided in Warren, Michigan. 

During 2002, petitioner lived with his mother, Genevieve

Onorati; his sister, Samantha Wray; and his aunt, Catherine

Onorati (Ms. Onorati). 

On his 2002 Form 1040, U.S. Individual Income Tax Return,

petitioner claimed four dependents: His daughter, ZJ;1 his son,

JO; his nephew, AR; and his aunt, Ms. Onorati. 

Camille Jefferson (Ms. Jefferson) is ZJ’s mother. During

2002, Ms. Jefferson had physical custody of ZJ the entire year. 

ZJ spent weekends with petitioner. Petitioner did not attach a
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2In the trial transcript, respondent refers to a “Form

8223.” From the context of the transcript, the Court understands

that respondent was referring to a Form 8332, Release of Claim to

Exemption for Child of Divorced or Separated Parents. 

Form 8332, Release of Claim to Exemption for Child of Divorced or

Separated Parents, to his return regarding ZJ.2

Lashandra Marsh (Ms. Marsh) is JO’s mother. Both petitioner

and Ms. Marsh claimed JO as a dependent for the 2002 tax year. 

Petitioner paid child support for JO during 2002 but did not have

custody of the child. Petitioner did not attach a Form 8332 to

his return regarding JO.

AR, petitioner’s nephew, spent weekends with petitioner but

did not live with him. AR’s mother had custody of him. 

Petitioner took AR and JO to “Fun Factory, Chuck E. Cheese,

movies, things of that nature.” At trial, petitioner did not

know AR’s birth date.

Ms. Onorati lived with petitioner at his mother’s house

during 2002. She is disabled and received Federal disability

payments of $7,344 during 2002. Petitioner does not have any

receipts to demonstrate any amounts he may have spent to care for

her. 

Respondent issued a notice of deficiency determining that

petitioner is not entitled to claim head of household filing

status, dependency exemption deductions, or child tax credits for

2002 because he failed to substantiate his claims. 
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Discussion

Deductions are a matter of legislative grace, and taxpayers

must maintain adequate records to substantiate the amount of any

deductions or credits claimed. Sec. 6001; INDOPCO, Inc. v.

Commissioner, 503 U.S. 79, 84 (1992); sec. 1.6001-1(a), Income

Tax Regs. Taxpayers generally bear the burden of proving that

the Commissioner’s determinations are incorrect. Rule 142(a);

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

Section 7491 does not apply here because petitioner has

failed to substantiate his deductions and provide evidence other

than his own testimony. See sec. 7491(a)(2). 

1. Dependency Exemption Deductions

Section 151(c) allows a taxpayer to deduct an exemption

amount for each “dependent” as defined in section 152. As

relevant here, section 152(a) defines a dependent to include a

son or daughter of the taxpayer, a son or daughter of a sibling

of the taxpayer, or an individual other than a spouse, whose

principal place of abode is the home of the taxpayer and who is a

member of the taxpayer’s household “over half of whose support,

for the calendar year in which the taxable year of the taxpayer

begins, was received from the taxpayer (or is treated under

subsection (c) or (e) as received from the taxpayer)”. 

To qualify for a dependency exemption deduction, a taxpayer

must establish the total support cost expended on behalf of a
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claimed dependent from all sources for the year and demonstrate

that he or she provided more than half of this amount. 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 furnished by all sources during the year in issue must

be established by competent evidence. Blanco v. Commissioner,

supra at 514; sec. 1.152-1(a)(1), Income Tax Regs. The amount of

support that the claimed dependent received from the taxpayer is

compared to the total amount of support the claimed dependent

received from all sources. Sec. 1.152-1(a)(2)(i), Income Tax

Regs.

Petitioner did not provide any evidence of total support for

the children and his aunt. He provided no evidence other than

his testimony regarding any amounts he may have expended to care

for ZJ, JO, AR, or Ms. Onorati. The Court sustains respondent’s

determination that petitioner is not entitled to dependency

exemption deductions for ZJ, JO, AR, or Ms. Onorati in 2002.

2. Head of Household Filing Status

Section 1(b) imposes a special tax rate on individuals

filing as head of household. As relevant herein, section 2(b)
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defines a “head of household” as an unmarried individual who

maintains as his or her home a household that for more than onehalf of the taxable year constitutes the principal place of abode

of an unmarried child, sec. 2(b)(1)(A)(i), or any other

individual for whom the taxpayer is entitled to a deduction under

section 151, sec. 2(b)(1)(A)(ii).

Respondent determined that petitioner is not entitled to

section 151 dependency exemption deductions for ZJ, JO, AR or Ms.

Onorati in 2002. The record demonstrates that the principal

place of abode for each of the children was the home of each of

their respective mothers, not petitioner’s home. Therefore,

petitioner is not entitled to head of household status as to any

of the children. Additionally, petitioner was not entitled to a

section 151 deduction for Ms. Onorati, and it has not been

established that he maintained the household, since he lived with

his mother. The Court sustains respondent’s determination that

petitioner is not entitled to claim head of household filing

status for 2002. 

3. Child Tax Credits

A taxpayer may be entitled to a credit against tax with

respect to each “qualifying child”. Sec. 24(a). The plain

language of section 24 establishes a three-pronged test to

determine whether a taxpayer has a qualifying child. If one of

the qualifications is not met, the claimed child tax credit must
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be disallowed. The first element of the three-pronged test

requires that a taxpayer must have been allowed a deduction for

that child under section 151. Sec. 24(c)(1)(A). 

As stated supra, the Court has sustained respondent’s

determination that petitioner is not entitled to a dependency

exemption deduction for ZJ, JO, or AR. Thus, petitioner fails

the first prong of the test of section 24. The Court sustains

respondent’s determination regarding the child tax credits under

section 24.

Reviewed and adopted as the report of the Small Tax Case

Division.

Decision will be entered

for respondent.