Rojaz v. Department of Revenue, Tc-Md 100660b (or.tax 11-30-2010)

DECISION Plaintiff filed an appeal in this court May 4, 2010, challenging Defendant's Notices of Deficiency Assessment (assessments) for tax years 2006, 2007, and 2008. Those assessments denied Plaintiff's head of household filing status and disallowed certain claimed dependent exemptions. One of the exemptions at issue is for Joanna, his daughter, who was born in December of 2007. The other dependents live in Mexico and are not part of Plaintiff's household. Defendant requested additional information in order to establish whether Plaintiff provided more than one-half of the support for the claimed dependents.

A case management conference was held August 10, 2010. The discussion established to the court's satisfaction that Plaintiff's daughter Joanna does qualify as a qualified dependent for 2007 and 2008, and that Plaintiff is entitled to Head of Household status for those two years.

Plaintiff was given additional time to establish the amount of support he provided and the costs of maintaining the home in Mexico where the claimed dependents live. Defendant made a written request on September 15, 2010, seeking specific information. No response was filed by Plaintiff. He was unable to establish that he, in fact, provided more than one-half of the support of the claimed out-of-country dependents.

The Internal Revenue Code requires that a taxpayer claiming dependents provide over one-half of their support. Seegenerally Internal Revenue Code (IRC) § 152(d)(1)(C) (limiting the IRC section 151 personal exemption deduction to qualifying relatives "with respect to whom the taxpayer provides over one-half of the individual's support for the calendar year * * *"). The same rule applies to head of household filing status. Hill v.Commissioner, TC Summ Op 2009-188, WL 4723324 at *3 (Dec 10, 2009) (stating that "[t]he taxpayer is considered as maintaining a household only if the taxpayer furnishes over one-half of the cost of maintaining the household"). Seealso James E. Maule, Income Tax Liability: Concepts andCalculation, 507-2d Tax Mgmt. (BNA) U.S. Income, at A-52(4) (2009) (stating that the fourth of the five requirements "is satisfied if the individual furnishes more than one-half of the cost of maintaining the household during the taxable year"; citing IRC § 2(b)(1) (other citations omitted)).

Because Plaintiff is unable to prove that he provided over one-half of the support of his claimed dependents in Mexico for the years at issue (2006, 2007, and 2008), Plaintiff's appeal fails on that portion under ORS 305.427 (2009) (requiring that the party seeking affirmative relief must provide a "preponderance of the evidence * * * to sustain the burden of proof.") Now, therefore,

IT IS THE DECISION OF THIS COURT that Plaintiff is allowed Head of Household status and daughter Joanna as an exemption for 2007 and 2008; and

IT IS FURTHER DECIDED that no other relief is granted.

Dated this ____ day of November 2010.

If you want to appeal this Decision, file a Complaint in theRegular Division of the Oregon Tax Court, by mailing to:1163 State Street, Salem, OR 97301-2563; or by hand delivery to:Fourth Floor, 1241 State Street, Salem, OR. Your Complaint must be submitted within 60 days after the dateof the Decision or this Decision becomes final and cannot bechanged. This document was signed by Magistrate Jeffrey S. Mattsonon November 30, 2010. The Court filed and entered this documenton November 30, 2010.