Butler: Both Parents Claimed the Children, and the Father’s Testimony Alone Did Not Prove Where They Lived

When both parents claim the same child and do not file jointly, the child goes to the parent the child lived with longer during the year, and the parent claiming that position must prove it. In Butler v. Commissioner, T.C. Memo. 2026-116 (Nov. 5, 2026), a California father lost head of household status, the child tax credit and the earned income tax credit for 2022 because his testimony about when his two sons stayed with him was not corroborated. The ruling rests on his missing and inconsistent evidence, not on a count of the nights the boys spent with their mother.

Judge Marshall wrote the memorandum opinion. The IRS conceded the $1,515 accuracy-related penalty, leaving the $7,573 deficiency in dispute.

One test was left: where the boys lived

Mr. Butler reported adjusted gross income (AGI) of $36,502 for 2022. He filed as head of household and claimed his sons, born in 2010 and 2012, as qualifying children. The boys’ mother, who filed separately, also claimed them; she reported AGI of $52,038. The IRS changed his filing status to single and adjusted his standard deduction and both credits.

A qualifying child must meet relationship, residence, age, support and joint-return tests under section 152(c)(1). The IRS conceded four of them. The only open question was residence: whether the boys shared their father’s principal place of abode for more than half of 2022.

The tiebreaker set what the father had to prove

Because both parents claimed the boys, the court applied the tiebreaker in section 152(c)(4)(B). When parents who claim a child do not file a joint return together, the child is treated as the qualifying child of “the parent with whom the child resided for the longest period of time during the taxable year,” and an equal split goes to the parent with the higher AGI. Here that was the mother. The court put it directly: “To prevail, petitioner must show that the children resided with him longer than they resided with their mother during the year in issue.”

The burden stayed with Mr. Butler. A taxpayer must prove entitlement to credits, and he neither claimed nor showed that section 7491(a), which can shift the burden on a factual issue, applied.

Detailed dates, without the log or the order

At trial Mr. Butler testified to twenty specific date ranges when the boys lived with him in 2022, from January 3–8 through December 19–24. He said the dates came from a custody court order and were recorded in a logbook. He did not offer either document.

By our count, those ranges total roughly 213 nights or 233 calendar days. If believed, his account would have cleared half the year, so the case turned on whether the court accepted it.

His exhibits ran over 100 pages: money orders, his own laboratory results, mortgage statements, papers about his mother’s estate, and the boys’ Partnership HealthPlan of California ID cards and a premium receipt. The court found that “The documents petitioner provided do not show the children’s principal place of abode during the year in issue.” The health plan cards named the boys as members but did not list their address.

An attachment to his Tax Court petition added a problem. It said the children lived with him from April 11 to November 7, 2023, a long single stretch in the following year, while his 2022 testimony described the boys moving between households for short periods. He did not explain the difference or say which pattern the custody order required.

Why the court did not accept the testimony

Mr. Butler argued at trial that his testimony showed the boys met the residence test. He filed no post-trial brief despite seven extensions.

The question was credibility. Quoting an earlier Tax Court decision, the court said: “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.”

It gave three reasons: the conflict between his testimony and his petition attachment; the gap between the documents he said he had and the documents he offered, with no explanation for the missing ones; and the lack of third-party testimony or other records about where the boys lived, despite repeated requests from the court. It concluded that “petitioner’s testimony alone is not sufficient to carry his burden of proof with respect to the children’s primary abode.”

At trial the judge told him he could move to reopen the record for the custody logs and order. The motion filed did not attach or describe them and instead identified expense records and receipts, so it did not meet the reopening standard.

Three tax benefits fell with the residence finding

Child tax credit. Section 24(c)(1) uses the section 152(c) qualifying-child definition for children under 17. Mr. Butler established neither qualifying-child status nor the separate written-release route in section 152(e)(2).

Earned income tax credit. Section 32 also relies on section 152(c). Without a qualifying child, his 2022 credit was reduced to zero, with the court citing section 32(f) and the IRS’s 2022 credit tables.

Head of household. Section 2(b) requires a home that was a qualifying child’s principal place of abode for more than half the year, determined without regard to section 152(e). Because neither boy qualified, he could not file as head of household.

Decision and what the case means

The court sustained the deficiency. Decision was entered on November 6, 2026, for the IRS on the deficiency and for Mr. Butler on the conceded penalty.

In our reading, the case is about proof: whether one parent’s account, standing alone, could establish the longer residence. The court pointed to what was missing: a document showing the boys’ address (the health plan cards listed none), the custody log and order he described, and any third-party testimony. In our view, school or medical records that list the child’s address on specific dates are the kind of evidence that fills that gap. Consistency also matters: what a parent writes in a petition is evidence too.

Our companion guide, Both Parents Claimed the Same Child: Who Gets the Credits and What Proves Where the Child Lived, explains what a written release under section 152(e) can and cannot move, and how to prepare that evidence.