Grossman v. Commissioner , 26 T.C. 234 ( 1956 )

Arthur Grossman, Petitioner, v. Commissioner of Internal Revenue, Respondent

Grossman v. Commissioner

Docket No. 53492

United States Tax Court

26 T.C. 234; 1956 U.S. Tax Ct. LEXIS 205;

April 30, 1956, Filed

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Decision will be entered for the respondent.

Petitioner's income tax return was prepared for him by an attorney and accountant. Only petitioner's name appeared thereon as taxpayer and only he signed it. The tax was computed therein on the basis that it was a separate return. His wife had no income during the taxable year. In the return petitioner claimed dependency exemption on account of a "nephew" who was, in fact, the nephew of petitioner's wife, for whom petitioner had undertaken to provide maintenance and care by an agreement when the nephew was placed in petitioner's home for convalescent care. Held, petitioner's return was a separate return and petitioner is not entitled to a dependency exemption on account of his wife's nephew.

Arthur Grossman, pro se.

A. Jesse Duke, Esq., for the respondent.

Kern, Judge.

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KERN

Respondent determined a deficiency in petitioner's income tax for the year 1950 in the sum of $ 104.38 by reason of his disallowance of an exemption claimed by petitioner on account of a dependent nephew of his wife.

FINDINGS OF FACT.

Petitioner lives in New York City and filed his Federal income tax return for the taxable year with the collector of internal revenue for the fourteenth district of New York.

In this return he claimed exemptions on account of his wife, his daughter, his son, and one Julius Hochberg identified in the return as "nephew."

Julius was a nephew of petitioner's wife. On or about July 2, 1950, Julius was in a State mental institution. On that date petitioner signed an agreement with Creedmoor State Hospital of the Department of Mental Health of the State of New York, reading as follows:

I. In consideration of the placement on convalescent care for a period of one year from the Creedmoor State Hospital of Jules [sic] Hochberg a patient in said hospital by the Director thereof, I Mr. Arthur Grossman, 115 Mosholu Parkway, North Bronx, N. Y. Phone: Olinville 2-6072 -- uncle of said patient, having been made fully acquainted with his mental condition do hereby agree with the Director to maintain, provide and care for said patient, and I do expressly state that I have the means wherewith to do so.

II. I do further assume all responsibility for his acts and welfare.

III. I also agree to defray all necessary expenses if it is necessary to return him to the hospital. I also agree to return him to the hospital should it become necessary during his convalescent period.

IV. I also further agree to have him brought to the mental clinic at Creedmoor State Hospital once each month on specified dates. First visit will be July 16, 1950 at 1:30 p. m. with some member of the family with whom he resides.V. I further agree to notify the hospital in writing of the mental condition of the patient at times specified or requested.VI. I agree to promptly notify the hospital should the patient die while on convalescent care.

Immediately thereafter petitioner took Julius into his home where he remained during the balance of the year. Julius had no means of support. Petitioner furnished Julius with food and clothing while he was residing with petitioner.

Petitioner made and filed a Federal income tax return for the taxable year on Form 1040. It was prepared for him by an attorney who was also an accountant. His name only was printed at the top of the first page of the return. Immediately thereunder was the printed instruction reading "If this is a joint return of husband and wife, use first name of both." The return was signed by the petitioner alone on the line designated for "signature of taxpayer." The line immediately below, designated for "signature of taxpayer's wife or husband if this is a joint return," was left blank. The tax was computed on lines 6, 7, and 8 on page 3 of the return, which are preceded by the following printed instructions: "Lines 6, 7 and 8 should be filled in ONLY by a single person or a married person making a separate return." No computation of tax was made on lines 9 to 13 on page 3 of the return although these were preceded by the following printed instructions: "Lines 9 to 13 should be filled in ONLY if this is a joint return of husband and wife."

Petitioner's wife had no income during the taxable year. While some of the deductions claimed by petitioner in the return were on account of expenditures made on her behalf, they were made from funds of petitioner.

Petitioner's income tax return for the taxable year was a separate return.

OPINION.

Petitioner first contends that he is entitled to an exemption on account of Julius even though the return in question should be considered as his separate return, because Julius, although not a son of a brother or sister of petitioner within the defining provisions of section 25 (b) (3) of the Internal Revenue Code of 1939, was a person with regard to whom he stood in loco parentis by reason of petitioner's agreement with the Department of Mental Health, set forth in our findings, and his care and maintenance of Julius pursuant to that agreement. However, this agreement was not equivalent to adoption and regardless of the burden assumed by petitioner and the laudable charity exercised by him, the relationship created by the agreement is not such as to justify petitioner's claim to a dependency exemption on account of Julius. See M. D. Harrison, 18 T.C. 540">18 T.C. 540.

Petitioner also contends that the return was intended to be a joint return, that his wife's failure to sign it was an oversight, that the description of Julius as a nephew instead of a nephew-in-law indicates an intention that the return was to be a joint return of petitioner and his wife, and that therefore it should be held by us to be a joint return with the result that a dependency exemption on account of Julius (the son of a brother or sister of petitioner's wife) would be properly available.

We do not doubt the sincerity of petitioner's present protestations that he intended the return to be a joint return. However, we believe that he is mistaken in his belief that at the time it was filed he had any such intention. A study of the return itself, carefully prepared as it was with professional advice, makes it impossible to conclude that at the time it was prepared and filed it was intended to be a joint return.

Decision will be entered for the respondent.