DocketNumber: Docket No. 4824-76.
Citation Numbers: 36 T.C.M. 934, 1977 Tax Ct. Memo LEXIS 220, 1977 T.C. Memo. 224
Filed Date: 7/18/1977
Status: Non-Precedential
Modified Date: 11/20/2020
MEMORANDUM OPINION
DAWSON,
This case was submitted without trial in accordance with provisions of
Petitioner's legal residence was Siler City, North Carolina, at the time his petition was filed herein. He previously had filed a Federal income tax return for the calendar year 1974 with the Internal Revenue Service Center at Chamblee, Georgia. That return was prepared using the cash receipts and disbursements method of accounting.
Petitioner is a male who was 28 years of age on December 31, 1974. During 1974 petitioner shared his four-room house with an adult female who was 21 years of age on December 31, 1974. The woman was unemployed and had a gross income of less than $750 during that year. More than one-half of her total support was provided by petitioner. She did not receive support from any individual other than petitioner. Petitioner's house was her principal place of abode and she was a member of his household. Therefore, petitioner classified her as a dependent on his Federal income tax return for 1974, claimed an exemption deduction for her, and claimed the filing status and preferential*223 tax rates reserved for "heads of households" by sections 2(b) and 1(b) of the Code, 1 respectively.
At no time during the year 1974 were petitioner and the claimed dependent legally married to each other or to any third party, within either the meaning of any recognized State law, the ceremonial
Respondent notified petitioner that both his claimed exemption deduction and his use of the "heads of households" rates were disallowed by a statutory notice of deficiency mailed on February 27, 1976. That determination was premised upon respondent's belief that petitioner's claimed dependency exemption for his female companion was barred by section 152(b)(5) of the Code which provides that:
An individual is not a member of the taxpayer's household if at any time during the taxable year of the*224 taxpayer the relationship between such individual and the taxpayer is in violation of local law.
Respondent's case rests completely upon his allegation that, by residing together during the taxable year, petitioner and his claimed dependent violated
If any man and woman, not being married to each other, shall lewdly and lasciviously associate, bed and cohabit together, they shall be guilty of a misdemeanor….
Thus, having determined administratively that petitioner's sole claimed dependent was not legally cognizable, respondent recomputed his tax liability without applying the "heads of households" rates. Petitioner asserts in opposition that (1) his conduct was not violative of this specific law, as interpreted by the appellate courts in North Carolina, (2) the right of privacy bars any application of the statute to conduct in the privacy of the home, (3) the statute is unconstitutionally vague and hence unenforceable, (4) the law is not subject to active enforcement within North Carolina, and (5) the respondent has failed to meet his burden of proof on the question of whether*225 petitioner's relationship with an unmarried woman violated State law.
A careful review of the stipulated facts, relevant State court decisions, and the Internal Revenue Code causes us to conclude that petitioner is not entitled to an exemption for his claimed dependent because he has failed to carry the burden of proof placed upon him by
Our conclusion does not focus on petitioner's lengthy discourse concerning his right to privacy or the alleged unconstitutional vagueness in the statute. It is clear that the statute has not fallen into disuse because cases applying it have surfaced in the State appellate courts as recently as 1970. See, e.g.,
The record before us lacks any evidence pertaining to one essential element of the offense set forth in
Section 152(a)(9) of the Code defines a "dependent" as:
An individual… who, for the taxable year of the taxpayer, has as his principal place of abode the home of the taxpayer and is a member of the taxpayer's household.
Petitioner claimed dependency status for the woman under this provision. Although respondent*228 bases his disallowance of petitioner's use of the "heads of households" rates solely upon his finding that petitioner had no dependents through the operation of section 152(b)(5), we also cannot overlook the clear language contained in section 2(b)(3)(B)(i) of the Code:
[For] purposes of this subtitle a taxpayer shall not be considered to be a head of household--…
(B) by reason of an individual who would not be a dependent for the taxable year but for-- (i) paragraph (9) of section 152(a)….
Accordingly, we hold that petitioner may not use the "heads of households" rates for 1974.
1. All statutory references pertain to the Internal Revenue Code of 1954, as amended during the year in issue, unless otherwise indicated.↩