1 Unless otherwise indicated, section references are to the

Internal Revenue Code of 1986, as amended and in effect for the

year at issue, and Rule references are to the Tax Court Rules of

Practice and Procedure.

T.C. Summary Opinion 2008-115

UNITED STATES TAX COURT

CARLOS MARTINEZ OLIVIO, Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 311-07S. Filed September 8, 2008.

Carlos Martinez Olivio, pro se.

Steven D. Tillem and Maria T. Stabile, for respondent.

THORNTON, Judge: This case was heard pursuant to the

provisions of section 7463 of the Internal Revenue Code in effect

when the petition was filed.1 Pursuant to section 7463(b), the

decision to be entered is not reviewable by any other court, and
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2 The Court uses initials when referring to a minor child. 

Rule 27(a)(3).

this opinion shall not be treated as precedent for any other

case.

Respondent determined a $4,043 deficiency in petitioner’s

2005 Federal income tax. The issues for decision are: 

(1) Whether petitioner is entitled to a dependency exemption

deduction for his cousin; (2) whether petitioner is entitled to

an earned income tax credit; and (3) whether petitioner is

entitled to a child tax credit.

Background

The parties have stipulated some facts, which we incorporate

herein. When he petitioned the Court, petitioner resided in New

York. 

During 2005 petitioner turned 22 years old. He worked in a

garage in New York City. He lived in an apartment in New York

City with his mother, grandmother, grandfather, sister, and

cousin, M.M.,2 who was 9 years old. M.M.’s parents lived in the

Dominican Republic.

Petitioner was the only one in his household who had a job. 

In addition to contributing to the household expenses, petitioner

paid for most of M.M.’s personal expenses including school

supplies, clothing, and a trip to Santo Domingo for the child to

visit his parents.
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For taxable year 2005 petitioner timely filed his income tax

return as a head of household. Petitioner claimed his mother and

M.M. as dependents and also claimed the earned income tax credit

and the child tax credit. 

In the notice of deficiency respondent disallowed both of

petitioner’s claimed dependency exemption deductions, the earned

income credit, and the child tax credit, and determined

petitioner’s filing status to be single rather than head of

household, thus determining a $4,043 deficiency in his 2005

Federal income tax. Before trial respondent conceded the

dependency exemption for petitioner’s mother and also conceded

petitioner’s filing status as head of household. 

Discussion

1. Dependency Exemption

A taxpayer is entitled to claim a dependency exemption only

if the claimed dependent is a “qualifying child” or a “qualifying

relative” as defined under section 152(c) and (d). Sec. 152(a). 

A qualifying child is defined as the taxpayer’s child,

brother, sister, stepbrother, or stepsister, or a descendant of

any of them. Sec. 152(c)(2). Because he is petitioner’s cousin,

M.M. is not a qualifying child within the meaning of section

152(c)(2). 

An individual who is not a qualifying child may still, under

certain conditions, qualify as a dependent if he or she is a
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qualifying relative. Sec. 152(a). Under section 152(d)(1), a

qualifying relative is an individual: (A) Who bears a qualifying

relationship to the taxpayer; (B) whose gross income for the year

is less than the section 151(d) exemption amount ($2,000 for

2005); (C) who receives over one-half of his support from the

taxpayer for the taxable year; and (D) who is not a qualifying

child of the taxpayer or of any other taxpayer for the taxable

year. 

Section 152(d)(2) lists eight types of qualifying

relationships, seven of which involve various familial

relationships that do not include cousins. Sec. 152(d)(2)(A)-

(G). The eighth type of qualifying relationship applies to an

individual, other than the taxpayer’s spouse, who has the same

principal place of abode as the taxpayer and is a member of the

taxpayer’s household for the taxable year. Sec. 152(d)(2)(H). 

In order for an individual to be considered a member of a

taxpayer’s household, the taxpayer must maintain the household,

and both the taxpayer and the individual must occupy the

household for the entire taxable year. Sec. 1.152-1(b), Income

Tax Regs. A taxpayer maintains a household if he or she

furnishes more than one-half of the household’s expenses. See

sec. 2(b); Rev. Rul. 64-41, 1964-1 C.B. (Part 1) 84.

Respondent has conceded that petitioner qualifies for head

of household status and thereby has effectively conceded that
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petitioner maintained the household for 2005. There is no

dispute that M.M. occupied the household for all of 2005. 

Accordingly, M.M. satisfies the qualifying relationship test

pursuant to section 152(d)(2)(H). 

In addition, we conclude that petitioner provided over onehalf of M.M.’s support for 2005. As suggested by the previous

discussion, in conceding that petitioner qualifies for head of

household filing status respondent has effectively conceded that

petitioner provided over one-half of the household’s expenses. 

M.M., as a member of the household, is considered to have

received an equal part of these contributions as his support. 

See De La Garza v. Commissioner, 46 T.C. 446 (1966), affd. per

curiam 378 F.2d 32 (5th Cir. 1967). Moreover, we have found that

petitioner paid for most of M.M’s personal expenses.

Finally, respondent does not contend and the record does not

suggest that M.M.’s income for 2005 was $2,000 or more. As

previously discussed, M.M. was not a qualifying child of

petitioner; respondent does not contend and the record does not

suggest that he was a qualifying child of any other taxpayer for

2005. 

We conclude that for 2005 M.M. was a qualifying relative of

petitioner within the meaning of section 152(d) and thus

petitioner’s dependent under section 152(a)(2). Accordingly,
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petitioner is entitled to a dependency exemption deduction for

M.M. for 2005.

2. Earned Income Credit

Section 32(a) permits an “eligible individual” to claim an

earned income credit against his income tax liability. An

eligible individual is defined in section 32(c)(1)(A) as either

(1) any individual who has a qualifying child for the taxable

year, or (2) any other individual who does not have a qualifying

child for the taxable year if the individual’s principal place of

abode is in the United States for more than one-half of the

taxable year, the individual is between 25 and 65 years old

before the end of the taxable year, and the individual is not a

dependent for whom a deduction is allowable under section 151 to

another taxpayer. 

As discussed above, petitioner did not have a qualifying

child for taxable year 2005. Moreover, during the year at issue

petitioner turned 22 years old and so did not meet the age

requirement of section 32(c)(1)(A)(ii)(II). Therefore,

petitioner does not qualify for the earned income credit. 

Respondent’s determination on this issue is sustained.

3. Child Tax Credit

Section 24(a) allows a tax credit for each qualifying child

of a taxpayer. For this purpose, a qualifying child means an

individual under age 17 who is a qualifying child of the taxpayer
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as defined in section 152(c). Sec. 24(c)(1). As discussed

above, M.M. is not a qualifying child of petitioner under section

152(c). Therefore petitioner is not entitled to the child tax

credit for M.M. for taxable year 2005. Respondent’s

determination on this issue is sustained. 

To reflect the foregoing and concessions by respondent,

Decision will be entered

under Rule 155.