Fernando D. Rivera - Page 7

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          3. Earned Income Credit                                                     
               Subject to various conditions and limitations, an eligible             
          individual is entitled to an earned income credit.  Sec. 32(a).             
          Petitioner was an eligible individual within the meaning of the             
          applicable statute.  Sec. 32(c)(1)(A)(i) and (ii).  Nevertheless,           
          because of the amount of his income, he is not entitled to an               
          earned income credit for 1997 unless at least one of his nephews            
          was a qualifying child with respect to him for that year.  Sec.             
               On his 1997 return, petitioner claimed an earned income                
          credit computed by treating two of his nephews as qualifying                
          children.  Among other requirements, to be treated as an eligible           
          child of a taxpayer, the child must be:  (1) A son or daughter              
          of the taxpayer; (2) a descendant of a son or daughter of the               
          taxpayer; (3) a stepson or stepdaughter of the taxpayer; or (4)             
          an eligible foster child of the taxpayer.  Sec. 32(c)(3)(B)(i).             
          Petitioner’s nephews obviously are not his children, descendants            
          of his children, or his stepchildren.  Furthermore, they were not           
          his eligible foster children because, although he generously                
          contributed towards their support, he did not care for them as              
          his own children.  Sec. 32(c)(3)(B)(iii).  According to school              
          records, petitioner’s mother, rather than petitioner, was the               
          guardian/custodian of petitioner’s nephews during the year in               
          issue.  It follows that respondent’s determination that                     

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