Eugene P. Mayeux - Page 8




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          than are taxpayers with fewer than two qualifying children.  Sec.           
          32(a) and (b).                                                              
               Respondent argues that petitioner had no qualifying children           
          in either 1995 or 1996 because no individual met the relationship           
          and residency requirements of section 32(c)(3).                             
               As is relevant here, the definition of a qualifying child              
          includes a child or an “eligible foster child” of the taxpayer              
          who has the same principal place of abode as the taxpayer for               
          more than half of the taxable year.  Sec. 32(c)(3)(A).2  An                 
          eligible foster child is an individual who the taxpayer cares for           
          as the taxpayer’s own child and who has the same principal place            
          of abode as the taxpayer for the taxpayer’s entire taxable year.            
          Sec. 32(c)(3)(B)(iii).                                                      
               On his returns, petitioner claimed that Dustin and Kristion            
          were qualifying children in 1995, and that Kristion and Brittany            



          2Respondent presumably is not arguing that Brittany cannot                  
          be a qualifying child in 1996 merely because she was born in                
          September of that year.  The Internal Revenue Service has taken             
          the position that the birth of an individual during the taxable             
          year does not affect the status of that individual as a                     
          qualifying child, so long as she lived with the taxpayer during             
          the entire time she was alive.  See the Internal Revenue                    
          Service’s instructions accompanying Schedule EIC, Earned Income             
          Credit (Qualifying Child Information), and their Publication 596,           
          Earned Income Credit (as published currently and for the years in           
          issue).  This position is in accordance with the legislative                
          history of sec. 32, which states that rules similar to those                
          governing head of household filing status should be adopted for             
          the sec. 32 residency requirements.  H. Conf. Rept. 101-964, at             
          1037 (1990), 1991-2 C.B. 560, 564; sec. 1.2-2(c)(1), Income Tax             
          Regs.                                                                       





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