Zoilo A. Urena - Page 4

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          is the mother of Gabriella.  Gabriella turned 6 years old during            
          the year in issue.  There is no support arrangement between                 
          petitioner and Ms. Hernandez as to their daughter.  During 2002,            
          Gabriella attended first grade at Forest Elementary School in               
          Queens, New York.                                                           
               During 2002, petitioner earned income as an independent taxi           
          driver in the amount of $13,379.  Petitioner reported this income           
          on Schedule C, Profit or Loss From Business.                                
               A taxpayer generally bears the burden of proving the                   
          Commissioner’s determinations in a notice of deficiency to be in            
          error.  Rule 142(a).  In certain circumstances, however, if the             
          taxpayer introduces credible evidence with respect to any factual           
          issue relevant to ascertaining the proper tax liability, section            
          7491 places the burden of proof on the Commissioner.  Sec.                  
          7491(a)(1); Rule 142(a)(2).  Credible evidence is “‘the quality             
          of evidence which, after critical analysis, * * * [a] court would           
          find sufficient * * * to base a decision on the issue if no                 
          contrary evidence were submitted.’”  Higbee v. Commissioner, 116            
          T.C. 438, 442 (2001) (quoting H. Conf. Rept. 105-599, at 240-241            
          (1998), 1998-3 C.B. 747, 994-995).                                          
          Filing Status                                                               
               The first issue for decision is whether petitioner’s filing            
          status for the taxable year 2002 is married filing separately as            

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