DocketNumber: No. 9677-05
Citation Numbers: 2006 T.C. Memo. 163, 92 T.C.M. 105, 2006 Tax Ct. Memo LEXIS 165
Judges: \"Wells, Thomas B.\"
Filed Date: 8/14/2006
Status: Non-Precedential
Modified Date: 11/21/2020
MEMORANDUM OPINION
WELLS, Judge: Respondent determined a deficiency in income tax of $ 2,875 for petitioner's taxable year 2003. Unless otherwise indicated, all section references are to the Internal Revenue Code in effect for the year in issue, and all Rule references are to the Tax Court Rules of Practice and Procedure. The issues we must decide are:
1. Whether petitioner is entitled to a
2. whether petitioner is entitled to a
3. whether petitioner is entitled to a
4. whether petitioner is entitled to a
Background
Some of the facts and certain exhibits have been stipulated. The parties' stipulations of fact are incorporated in this opinion by reference and are found as facts in the instant case. At the time of filing the petition, petitioner resided in Tallahassee, Florida.
In this opinion, our references to I.T.D.S. are to the biological2006 Tax Ct. Memo LEXIS 165">*166 son of petitioner and Rhonda Gibson (Ms. Gibson). Petitioner and Ms. Gibson were never married and did not live together during 2003. During the 2003 school year, I.T.D.S. lived with Ms. Gibson, her husband, and her other son at Ms. Gibson's home in Fort Valley, Georgia. Petitioner visited I.T.D.S. approximately two weekends per month and on holidays. During these visits, petitioner and I.T.D.S. stayed with petitioner's mother in Fort Valley, Georgia, 1 rather than returning to petitioner's apartment in Tallahassee, Florida. For 12 weeks during the summer, I.T.D.S. lived with petitioner at petitioner's apartment in Tallahassee and spent approximately two weekends per month with Ms. Gibson at her home in Georgia.
During 2003, the State of Florida withheld $ 3,143.92 from petitioner's paychecks for child support payments to Ms. Gibson. The State of Florida continued to withhold child support payments2006 Tax Ct. Memo LEXIS 165">*167 during the 12 weeks of the summer when I.T.D.S. stayed with petitioner. During 2004 petitioner began a legitimization proceeding to support his claim for custody of I.T.D.S. in the event I.T.D.S. was ever removed from Ms. Gibson's home.
Petitioner and Ms. Gibson do not have an agreement regarding who may claim I.T.D.S. as a dependent, and both petitioner and Ms. Gibson claimed I.T.D.S. as a dependent and as a qualifying child for purposes of the earned income credit. 2 Petitioner also claimed a
2006 Tax Ct. Memo LEXIS 165">*168 Discussion
As a general rule, the Commissioner's determinations in the notice of deficiency are presumed correct and the burden of proving an error is on the taxpayer.
The burden of proof does not shift to the Commissioner if the taxpayer fails to comply with the substantiation and record-keeping requirements of the Internal Revenue Code.
In the instant case, the only evidence petitioner offered to support his claim that he had custody of I.T.D.S. for over half of 2003 was his own vague, implausible, uncorroborated testimony. Furthermore, petitioner did not produce any documents, receipts, or witnesses2006 Tax Ct. Memo LEXIS 165">*169 substantiating the amounts he allegedly paid to support I.T.D.S. or for child care during 2003. Accordingly, we hold that petitioner has failed to meet the requirements of
In general, a taxpayer is allowed an exemption for each dependent.
Petitioner testified that I.T.D.S. lived with Ms. Gibson and her husband during the school year and lived with petitioner for 12 weeks during the summer. Petitioner visited I.T.D.S. approximately two weekends per month during the school year and on holidays, and I.T.D.S. returned to Ms. Gibson approximately two weekends per month during the summer. Petitioner did not give specific dates or maintain a log regarding when he had custody of I.T.D.S. and testified that he had "no formula" for how he calculated the number of days he had custody of I.T.D.S. 42006 Tax Ct. Memo LEXIS 165">*172 Petitioner's vague testimony is insufficient to meet his burden of proving that he had custody of I.T.D.S. for over half of 2003. See
We do not engage in a lengthy discussion of whether petitioner qualifies for the child care credit or the child tax credit pursuant to
We have considered all of the parties' contentions. To the extent not addressed herein, those contentions are without merit or unnecessary to reach.
To reflect2006 Tax Ct. Memo LEXIS 165">*173 the foregoing,
Decision will be entered for respondent.
1. Ms. Gibson and petitioner's mother both resided in the town of Fort Valley, Georgia, during the year in issue.↩
2. Petitioner did not attach to his a return a Form 8332, Release of Claim to Exemption for Child of Divorced or Separated Parents, or similar written declaration signed by Ms. Gibson releasing her claim to the exemption.↩
3. We infer from the record that Ms. Gibson and petitioner provided over half of I.T.D.S.'s support during 2003 but note that I.T.D.S.'s grandmother may have provided some support.↩
4. Petitioner attached an appendix to his brief detailing the days he had custody of I.T.D.S. and claiming they totaled 186. Petitioner did not present this evidence at trial. Ex parte statements in briefs are not evidence and will not be addressed.
5. According to respondent's calculations, petitioner had custody of I.T.D.S. for less than 156 days, well short of half of the calendar year.↩