Maurice Butler

United States Tax Court T.C. Memo. 2026-116 MAURICE BUTLER, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent __________ Docket No. 6448-24. Filed November 5, 2026. __________ Cathyana Jean-Baptiste, for petitioner. Harrison M. Marks, Charles A.S. Wiseman, and Brian A. Pfeifer, for respondent. MEMORANDUM FINDINGS OF FACT AND OPINION MARSHALL, Judge: In a Notice of Deficiency dated April 8, 2024, respondent determined a deficiency of $7,573 and a section 6662(a)1 accuracy-related penalty of $1,515 2 with respect to petitioner’s 2022 tax year (year in issue). On April 22, 2024, petitioner timely filed a Petition with the Court disputing the Notice of Deficiency. After concessions, the issues for decision are whether petitioner is entitled to (1) head of household filing status, (2) a child tax credit as a result of having two qualifying children, 1 Unless otherwise indicated, statutory references are to the Internal Revenue Code, Title 26 U.S.C. (I.R.C. or Code), in effect at all relevant times, and Rule references are to the Tax Court Rules of Practice and Procedure. Except where otherwise indicated, monetary amounts are rounded to the nearest dollar. 2 Respondent conceded that petitioner is not liable for the accuracy-related penalty pursuant to section 6662(a). Served 11/05/26  2 [*2] and (3) an earned income tax credit for the year in issue. Petitioner resided in California when the Petition was timely filed. FINDINGS OF FACT Some of the facts have been stipulated and are so found. The First Stipulation of Facts and accompanying Exhibits are incorporated herein by reference. I. 2022 Tax Return Petitioner timely filed his Form 1040, U.S. Individual Income Tax Return, for the year in issue and reported an adjusted gross income (AGI) of $36,502. Petitioner claimed head of household filing status and two qualifying children, resulting in a child tax credit and an earned income tax credit. On his return he claimed that his qualifying children were his two sons, A.B. and A.B., born in 2010 and 2012. Respondent contends and petitioner does not dispute that A.B. and A.B. were also claimed as dependents by their mother on her 2022 Form 1040. The children’s mother reported an AGI of $52,038 for the year in issue. II. Notice of Deficiency and Concessions On April 8, 2024, respondent issued a Notice of Deficiency to petitioner for the year in issue. Respondent determined that A.B. and A.B. were not qualifying children with respect to petitioner for the year in issue and therefore changed petitioner’s filing status from head of household to single and adjusted the standard deduction, earned income tax credit, and child tax credit, accordingly. Petitioner timely petitioned this Court for review of that determination. As noted above, respondent conceded that petitioner is not liable for an accuracy-related penalty pursuant to section 6662(a). Respondent further conceded that A.B. and A.B. satisfied the relationship, age, support, and joint return requirements of section 152(c) for the year in issue. III. Petitioner’s Testimony Petitioner testified at trial that his sons lived with him from January 3 to 8, January 10 to 22, January 31 to February 12, February 21 to March 16, March 21 to 31, April 4 to 19, April 25 to May 14, May 24 to June 4, June 6 to 25, July 2 to 9, July 11 to 23, July 25 to August 2, August 9 to 27, August 29 to September 10, September 26 to October 1,  3 [*3] November 7 to 12, November 28 to December 3, December 5 to 10, December 12 to 17, and December 19 to 24, 2022. He testified that these dates were based on a court order for custody and were noted in a logbook, but he failed to provide the court order or the logbook as evidence to support his recollection. In the Attachment to Petition that petitioner filed along with his Petition, he states that his “children lived with [him] from 4/11/23 to 11/7/23.” Petitioner provided over 100 pages of documents that were included in the Stipulation of Facts as Exhibits 4-P and 5-P. These documents included copies of money orders for various expenses, laboratory test results for himself, mortgage statements, documents regarding his mother’s estate, and Partnership HealthPlan of California ID cards and a premium receipt for his sons. Petitioner did not provide the Court or respondent’s counsel with a logbook or the court order for custody. The documents petitioner provided do not show the children’s principal place of abode during the year in issue. OPINION I. Burden of Proof Deductions and credits are matters of legislative grace; taxpayers bear the burden of proving their entitlement to deductions and credits allowed by the Code and substantiating the amounts thereof. INDOPCO, Inc. v. Commissioner, 503 U.S. 79, 84 (1992). The Commissioner’s determinations in a Notice of Deficiency are generally presumed correct, and the taxpayer bears the burden of proving those determinations erroneous. See Rule 142(a); Welch v. Helvering, 290 U.S. 111, 115 (1933). Section 7491(a)(1) provides that if, in any court proceeding, a taxpayer introduces credible evidence with respect to any factual issue relevant to ascertaining the liability of the taxpayer for any tax imposed by subtitle A or B, the Commissioner shall have the burden of proof with respect to that issue. See Higbee v. Commissioner, 116 T.C. 438, 440–41 (2001). For the burden to be placed on the Commissioner under this section, however, the taxpayer must demonstrate that he has (1) complied with the requirements under the Code to substantiate any item, (2) maintained all records required under the Code, and (3) cooperated with reasonable requests by the Secretary for witnesses, information, documents, meetings, and interviews. See I.R.C.  4 [*4] § 7491(a)(2); Higbee, 116 T.C. at 441. The burden of proof remains on petitioner in this case as he has neither alleged nor otherwise shown that section 7491(a) is applicable. See Higbee, 116 T.C. at 440–41. II. Qualifying Child Section 152(a) defines a dependent as either a “qualifying child” or a “qualifying relative” of the taxpayer. A qualifying child with respect to a taxpayer must (A) bear a specified relationship to the taxpayer; (B) share the same principal place of abode as the taxpayer for more than one-half of the tax year; (C) meet specific age requirements; (D) not have provided over one-half of his or her own support for the calendar year in which the tax year of the taxpayer begins; and (E) generally not have filed a joint return with a spouse for such calendar year. I.R.C. § 152(c)(1). As mentioned above, respondent concedes that the relationship, age, support, and joint return requirements are satisfied with respect to A.B. and A.B. However, respondent maintains that A.B. and A.B. did not have the same abode as petitioner for more than one- half of the year in issue as section 152(c)(1)(B) requires. A.B. and A.B.’s mother, who filed separately for the year in issue, also claimed the children as dependents. If multiple individuals claim the same qualifying child on their tax returns, section 152(c)(4) governs which individual is entitled to claim the “qualifying child” as a dependent. Specifically, section 152(c)(4)(B) provides: If the parents claiming any qualifying child do not file a joint return together, such child shall be treated as the qualifying child of— (i) the parent with whom the child resided for the longest period of time during the taxable year, or (ii) if the child resides with both parents for the same amount of time during such taxable year, the parent with the highest adjusted gross income. During the year in issue, petitioner had AGI of $36,502 and the children’s mother had an AGI of $52,038. To prevail, petitioner must show that the children resided with him longer than they resided with their mother during the year in issue. In his opening brief, respondent contends that petitioner has not demonstrated that A.B. and A.B. lived with him for more than one-half  5 [*5] of the year in issue. Petitioner did not file a brief in this case; 3 however, he argued at trial that A.B. and A.B. nevertheless satisfy the primary abode requirement. At trial, petitioner put forth no documentary evidence to show that the children lived with him for at least 183 days during the year in issue. For example, the copies of Partnership HealthPlan of California ID cards provided by petitioner name the children as members but do not include their address of record. Petitioner testified as to specific dates his children stayed with him; however, he failed to produce a custody log, a court order for custody supporting his testimony, or any other testimonial or documentary evidence that might bolster his statement. 4 The dates petitioner listed in his Attachment to Petition for 2023 (i.e., the year following the year in issue) were also inconsistent with his testimony regarding the year in issue. Petitioner’s testimony suggests 3 The Court ordered the parties to file simultaneous opening briefs by August 26, 2025. Respondent timely filed an Opening Brief on August 26, 2025. On August 26, 2025, petitioner filed the first of eight Motions for Extension of Time to file an opening brief. The Court granted seven of petitioner’s Motions for Extension of Time to file an opening brief, extending the due date for opening briefs from August 26 to December 30, 2025. In the Order granting petitioner’s seventh Motion for Extension of Time, the Court advised petitioner’s counsel that it would not grant any additional extensions of time to file an opening brief. When petitioner’s counsel filed an eighth Motion for Extension of Time, we denied the Motion. By not filing an opening brief with the Court, petitioner has failed to comply with Rule 151 and a direct order of the Court. See also Mock v. Commissioner, T.C. Memo. 1987-382, 1987 Tax Ct. Memo LEXIS 380, at *5 (“The provisions of Rule 151 are not permissive but mandatory.”). 4 At trial, the Court informed petitioner that he could file a motion to reopen the record to attempt to have admitted additional evidence, including custody logs and a custody court order that he claimed were in his possession but had not been previously shown to respondent or offered as exhibits before or during the trial. When petitioner’s counsel filed a Motion to Reopen the Record, she did so without filing an entry of appearance. Furthermore, she did so without describing or attaching any of the documents she sought to have introduced into the record. For the Court to grant a motion to reopen the record, the moving party must show, among other requirements, that the additional evidence is not merely cumulative or impeaching, is material to the issues involved, and probably would have changed some aspect of the outcome of the case. Butler v. Commissioner, 114 T.C. 276, 287 (2000). Failing to describe and include such documents, despite having been instructed by the Court to do so, petitioner failed to show that the documents meet this standard. Additionally, we note that the documents discussed during trial as the subject for petitioner’s potential motion were custody logs and petitioner’s custody court order, while the documents identified in petitioner’s Motion were “expense records and supporting receipts demonstrating the legitimacy of deductions and the proper reporting of income.”  6 [*6] that the children went back and forth between the households, staying with one parent at a time for short time periods throughout the year in issue; but his Attachment to Petition suggests that they stayed with one parent at a time for an extended period in 2023. Petitioner does not explain this discrepancy nor clarify which custody pattern aligns with the court order for custody. In deciding whether a taxpayer has carried his burden of proof, the Court considers the credibility of the witness giving testimony. “As a trier of fact, it is [the Court’s] duty to listen to the testimony, observe the demeanor of the witnesses, weigh the evidence, and determine what [the Court] believe[s].” Kropp v. Commissioner, T.C. Memo. 2000-148, 2000 WL 472840, at *3. In Neonatology Associates, P.A. v. Commissioner, 115 T.C. 43, 84 (2000), aff’d, 299 F.3d 221 (3d Cir. 2002), the Court outlined how it may determine credibility: “The mere fact that one party presents unopposed testimony on his or her behalf does not necessarily mean that the elicited testimony will result in a finding of fact in that party’s favor.” The Court has elaborated on the overall credibility of a witness: “We will not accept the testimony of witnesses at face value if we find that the outward appearance of the facts in their totality conveys an impression contrary to the spoken word.” Id. Given the inconsistency between petitioner’s testimony and the statements in his Attachment to Petition; the inconsistencies between the documentary evidence petitioner purported to have and the documentary evidence offered (and lack of explanation as to why the allegedly available documentation was not provided); and the lack of any supporting third-party testimony and other documentation with respect to the children’s residence (despite multiple prior requests from the Court), we conclude that petitioner’s testimony alone is not sufficient to carry his burden of proof with respect to the children’s primary abode. Petitioner has not established that A.B. and A.B. were his qualifying children for the year in issue. III. Credits Section 24(a) allows a child tax credit of a specified amount with respect to each qualifying child of a taxpayer. As pertinent to this case, section 24(c)(1) provides that, for purposes of section 24, “qualifying child” means an individual under age 17 who is a qualifying child of the taxpayer as defined in section 152(c). Petitioner did not establish that his children qualified as dependents under section 152(c) or the exception in section 152(e)(2).  7 [*7] Section 32(a)(1) permits an eligible individual an earned income tax credit against the individual’s tax liability. The amount of the credit varies depending on whether the taxpayer has one or more qualifying children. I.R.C. § 32(b). A qualifying child is a child of the taxpayer as defined in section 152(c), subject to modifications. I.R.C. § 32(c)(3)(A). As discussed supra, petitioner has not shown that A.B. and A.B. are his qualifying children within the meaning of section 152(c); therefore, petitioner has not established that A.B. and A.B are qualifying children for the purposes of sections 24 and 32. With respect to the earned income tax credit, petitioner’s credit is reduced to zero for the year in issue if he does not have qualifying children. See I.R.C. § 32(f); Internal Revenue Serv., 1040 and 1040-SR Tax and Earned Income Credit Tables (2022), https://www.irs.gov/pub/irs-prior/i1040tt--2022.pdf (Sep. 27, 2022). Petitioner has not met his burden of establishing his entitlement to a child tax credit or an earned income tax credit with respect to A.B. or A.B. for the year in issue. IV. Head of Household Filing Status Section 1(b) provides an advantageous tax rate schedule for a taxpayer who qualifies as a “head of household.” As relevant here, an unmarried individual will qualify as a head of household if he 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 (as defined in section 152(c), determined without regard to section 152(e)), or certain other persons. See I.R.C. § 2(b); Rowe v. Commissioner, 128 T.C. 13, 16– 17 (2007). Petitioner claimed head of household status for the year in issue on the ground that he maintained a household for his children, each of whom he claimed as a “qualifying child.” As discussed supra, neither A.B. nor A.B. meets the requirements of a “qualifying child” of petitioner pursuant to section 152(c). Therefore, petitioner is not entitled to claim head of household filing status for the year in issue. V. Conclusion For the reasons discussed herein, we conclude that petitioner has failed to carry his burden of proving that his children A.B. and A.B. were qualifying children within the meaning of section 152(c). Accordingly, we will sustain respondent’s deficiency determination in the Notice of Deficiency. We have considered all other arguments made and facts presented in reaching our decision and, to the extent not discussed above, we conclude that they are moot, irrelevant, or without merit.  8 [*8] To reflect the foregoing, Decision will be entered for respondent as to the deficiency and for petitioner as to the accuracy-related penalty under section 6662(a).