DocketNumber: Docket No. 365-77.
Citation Numbers: 43 T.C.M. 41, 1981 Tax Ct. Memo LEXIS 43, 1981 T.C. Memo. 698
Filed Date: 12/9/1981
Status: Non-Precedential
Modified Date: 11/20/2020
*43 In 1972 and in 1973 petitioner-husband provided more than $ 1,200 for the support of four children from his former marriage. The former wife was the custodial parent. Respondent did "not clearly establish that [the custodial parent] provided more for the support of [two of the children during 1972 and three of the children during 1973] than the parent not having custody."
MEMORANDUM FINDINGS OF FACT AND OPINION
CHABOT,
FINDINGS OF FACT
Some of the facts have been stipulated; the stipulation and the stipulated exhibits are incorporated herein by this reference.
When the petition in this case was filed, petitioners William J. Walsh (hereinafter sometimes referred to as "William") and Lois M. Walsh (hereinafter sometimes referred to as "Lois"), husband and wife, resided in Cincinnati, Ohio.
William was previously married to Clare M. Walsh (hereinafter sometimes referred to as "Clare"). Their four children (hereinafter sometimes referred to collectively as "the Walsh children") are Daniel (born June 11, 1957), Patricia (born October 21, 1958), Thomas (born October 19, 1960), and Joseph (born September 19, 1962). William and Clare were divorced in 1967. The Decree of Divorce granted custody*46 of the Walsh children to Clare, but did not provide for any allocation of the dependency exemptions. For the years in issue, there was no written agreement containing such a provision as to dependency exemptions.
During 1972, the principal place of residence of the Walsh children was with Clare. Clare spent $ 1,945 in rent on apartments for the Walsh children and herself during that year. Each child's allocable portion of the rental expense during 1972 was $ 389. The fair rental value of the furniture provided by Clare and used by the Walsh children and Clare in their three-bedroom apartments in 1972 was $ 40 per month. Each child's allocable portion of the furniture fair rental value for 1972 was $ 96. Additionally, Clare paid $ 100 in 1972 to move the Walsh children and herself to a new apartment. Each child's allocable portion of that expense was $ 20.
The amounts spent for support of each of the Walsh children in 1972 are shown in table 1.
Table 1
Type of Support | Daniel | Patricia | Thomas | Joseph |
Lodging | $ 505 | $ 505 | $ 505 | $ 505 |
Household expenses (including | 160 | 160 | 160 | 160 |
utilities and drug store | ||||
purchases) | ||||
Groceries and school lunches | 775 | 765 | 690 | 675 |
Spending money | 130 | 130 | 80 | 65 |
Clothes and laundry 1 | 150 | 150 | 150 | 150 |
Transportation | 100 | 100 | 50 | 50 |
Medical 2 | 90 | 30 | 30 | 30 |
Church | 10 | 10 | 10 | 10 |
Birthday and Christmas | 50 | 50 | 50 | 50 |
presents 3 | ||||
Recreation (music lessons, | 185 | 200 | 5 | 5 |
etc.) | ||||
Canada vacation - Clare | 75 | 75 | 75 | |
Florida vacation, visits - | 50 | 355 | 355 | |
William | ||||
Totals | $ 2,230 | $ 2,150 | $ 2,160 | $ 2,130 |
During 1972, William paid $ 3,337.40 to Clare though the Domestic Relations Court of Hamilton County, Ohio, Bureau of Support, for support of the Walsh children, or $ 834.35 per child.
During 1973, the principal place of residence of Patricia, Thomas, and Joseph was with Clare. Daniel lived with his grandmother for nine months during 1973. Thomas lived with his grandmother during the three months, May, June, and July of that year.
During 1973, Clare spent $ 2,240 in rent on an apartment for the Walsh children and herself. Each child's allocable portion of the rental expense during that year was $ 448. The fair rental value of the furniture provided by Clare and used by the Walsh children and Clare in their three-bedroom apartment was at least $ 40 per month. Each child's allocable portion of the furniture fair*48 rental value for 1973 was $ 97.
The amounts spent for support of the Walsh children in 1973, excluding lodging, are shown in table 2.
Table 2
Type of Support | Daniel | Patricia | Thomas | Joseph |
Lodging | $ 545 | $ 545 | $ 545 | $ 545 |
Household expenses (including | 90 | 165 | 135 | 165 |
utilities and drug store | ||||
purchases) | ||||
Groceries and school lunches | 280 | 960 | 700 | 920 |
Spending money | 130 | 130 | 80 | 65 |
School | 15 | 15 | 25 | 10 |
Clothes and laundry 1 | 110 | 160 | 150 | 160 |
Transportation | 50 | 100 | 50 | 50 |
Medical expense 2 | 110 | 85 | 80 | 35 |
Church | 5 | 15 | 10 | 15 |
Birthday and Christmas | 50 | 50 | 50 | 85 |
presents 3 | ||||
Recreation | 135 | 110 | 45 | 45 |
Visits--William | 50 | 250 | 250 | |
Totals | $ 1,520 | $ 2,385 | $ 2,120 | $ 2,345 |
During 1973, William paid $ 3,946.14 to Clare through the Domestic*49 Relations Court of Hamilton County, Ohio, Bureau of Support, for the support of the Walsh children. Of the $ 3,946.14, $ 46.14 represented arrearanges in support payments relating to a prior year or years. The $ 3,900 in support for 1973 equals $ 975 per child to clare.
On their 1972 and 1973 Federal income tax returns, both petitioners and Clare claimed dependency exemptions for each of the Walsh children.
OPINION
Petitioners contend that, because William paid more than $ 1,200 in support for the Walsh children in each of the years in issue and respondent did not clearly establish that Clare provided over half of the support of each child, they are entitled to the dependency exemptions for each of the Walsh children. Additionally, they contend that they established that they contributed over half of the support of each of the Walsh children in each year. Conceding that he bears the burden of clearly establishing that Clare provided over half of the support of each child in each year, respondent contends that he has borne his burden and that petitioners are not entitled to the dependency exemption for any of the Walsh children in either year.
For 1972, we agree with respondent*50 as to Daniel and Patricia, but with petitioners as to Thomas and Joseph. For 1973, we agree with respondent as to Patricia, but with petitioners as to Daniel, Thomas, and Joseph.
*52 Where, as in the instant case, the custodial parent is not a party to the Tax Court proceeding, the burden falls on respondent to overcome the presumption favoring the noncustodial parent who has furnished at least $ 1,200 of support. We have interpreted "clearly establish" as used in the statute to mean that respondent must overcome the presumption by a "clear preponderance" of the evidence, which, in turn, means positive and explicit proof (as opposed to inferences to be drawn from ambiguous and equivocal proof).
Neither side makes any effort to allocate support child by child. Apparently, the parties regard the children as being fungible. Each side evidently seeks complete victory, which is consistent with the parties' refusal to settle. We have done the best we could with the information presented on the record in the instant case. In evaluating gaps in the record, we have taken into account respondent's burden of proof.
The parties appear to limit their*53 criticism of each other's contentions to a lack of substantiation or identification of various expenses and to whom they relate. We do not understand either party to argue that any particular type of expense presented as evidence as relating to the Walsh children (i.e., the vacations to Florida) does not constitute support or to advocate other than pro rata allocation of items found to be support. 4
*54 Our conclusions as to total support, support provided by William, and support provided by Clare for each of the Walsh children in 1972 are set forth in table 3.
Table 3
Daniel | Patricia | Thomas | Joseph | |
Total support | $ 2,230 | $ 2,150 | $ 2,160 | $ 2,130 |
Less: support provided by William | 990 | 995 | 1,300 | 1,300 |
Support provided by Clare | $ 1,240 | $ 1,155 | $ 860 | $ 830 |
As to 1973, we have found that Daniel and Thomas lived with their grandmother for nine and three months, respectively. 5 Both parties have taken the position at trial and on brief that
*55 Our conclusions as to total support, support provided by William, and support provided by Clare for each of the Walsh children in 1973 are set forth in table 4.
Table 4
Daniel | Patricia | Thomas | Joseph | |
Total support | $ 1,520 | $ 2,385 | $ 2,120 | $ 2,345 |
Less: support provided by | ||||
William 1 | 1,135 | 1,190 | 1,385 | 1,340 |
Support provided by Clare | $ 385 | $ 1,195 | $ 735 | $ 1,005 |
We hold that petitioners are entitled to dependency exemptions as to the Walsh children as follows: for 1972--Thomas and Joseph; for 1973--Daniel, Thomas, and Joseph.
1. Unless indicated otherwise, all section references are to sections of the Internal Revenue Code of 1954 as in effect for the taxable years in issue.↩
1. Of the clothes and laundry amounts, William provided $ 30 for each of the Walsh children. ↩
2. Of the medical amounts, William provided $ 75 for Daniel and $ 30 for each of the other Walsh children. ↩
3. William provided all the amounts listed for birthday and Christmas presents. The amounts provided by Clare as presents are included in other categories.↩
1. Of the clothes and laundry amounts, William provided $ 30 each for Patricia, Thomas, and Joseph. ↩
2. William provided all the listed medical amounts. ↩
3. Of the birthday and Christmas presents amounts, William provided $ 50 for each of the Walsh children. The amounts provided by Clare as presents, in addition to the $ 35 for Joseph, are included in other categories.↩
2.
(a) General Definition.--For purposes of this subtitle, the term "dependent" means any of the following individuals over half of whose support, for the calendar year in which the taxable year of the taxpayer begins, was received from the taxpayer (or is treated under subsection (c) or (e) as received from the taxpayer):
(1) A son or daughter of the taxpayer, or a descendant of either, * * * ↩
3.
(e) Support Test in Case of Child of Divorced Parents, Et Cetera.--
(1) General rule.--If--
(A) a child (as defined in
(B) such child is in the custody of one or both of his parents for more than one-half of the calendar year,
such child shall be treated, for purposes of subsection (a), as receiving over half of his support during the calendar year from the parent having custody for a greater portion of the calendar year unless he is treated, under the provisions of paragraph (2), as having received over half of his support for such year from the other parent (referred to in this subsection as the parent not hving custody).
(2) Special rule.--The child of parents described in paragraph (1) shall be treated as having received over half of his support during the calendar year from the parent not having custody if--
(B)(i) the parent not having custody provides $ 1,200 or more for the support of such child (or if there is more than one such child, $ 1,200 or more for all of such children) for the calendar year, and
(ii) the parent having custody of such child does not clearly establish that he provided more for the support of such child during the calendar year than the parent not having custody.
For purposes of this paragraph, amounts expended for the support of a child or children shall be treated as received from the parent not having custody to the extent that such parent provided amounts for such support.
[The subsequent amendment of
4. As reflected in our findings, we have allocated certain support expenses sufficiently identified as relating to all members of Clare's household (such as rent) on a pro rata basis to Clare and the Walsh children. E.g.,
5. One or both parents must have custody of the child for more than half of the calendar year at issue for
6.
1. Since each side asks us to take into account only $ 3,900 of the $ 3,946.14 William paid to Clare for child support, we assume that William's payment obligation was only $ 3,900. See