Matthew D. Gilmore - Page 7

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          individual who has a qualifying child for the taxable year.3  A             
          qualifying child is one who satisfies a relationship test, a                
          residency test, and an age test.  Sec. 32(c)(3).  Ileane and                
          Janiah clearly satisfy the residency test and the age test.  We             
          thus consider whether they satisfy the relationship test.4  For             
          the tax year in issue, the relationship test under section                  
          32(c)(3) required as follows:                                               
               (B).  Relationship test.--                                             
                    (i) In general.--An individual bears a                            
               relationship to the taxpayer described in this                         
               subparagraph if such individual is--                                   
                    (I) a son, daughter, stepson, or                                  
                    stepdaughter, or a descendant of any such                         
                    (II) a brother, sister, stepbrother, or                           
                    stepsister, or a  descendant of any such                          
                    individual, who the taxpayer cares for as the                     
                    taxpayer’s own child, or                                          
               It is clear that Ileane and Janiah are petitioner’s nieces,            
          the descendants of his sister.  The remaining part of the                   
          relationship test under section 32(c)(3)(B)(i)(II) is that the              

               3  Sec. 32(c)(1)(C) sets forth the conditions when an                  
          individual shall be treated as the qualifying child of the                  
          taxpayer where two or more taxpayers claim an individual as a               
          qualifying child.  Respondent has not argued that Ileane or                 
          Janiah was a qualifying child to someone other than petitioner,             
          nor is there any evidence in this record upon which the Court               
          could make such a finding.                                                  
               4  Respondent incorrectly referred to sec. 32(c) as in                 
          effect for years prior to 2002, asserting that petitioner did not           
          satisfy the relationship test.                                              

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