T.C. Memo. 1996-387
UNITED STATES TAX COURT
WILSON BAKER, JR., Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 6227-95. Filed August 20, 1996.
Wilson Baker, Jr., pro se.
Deborah A. Harrington, for respondent.
MEMORANDUM FINDINGS OF FACT AND OPINION
COHEN, Chief Judge: Respondent determined deficiencies in
petitioner's Federal income taxes and penalties as follows:
Penalty
Year Deficiency Sec. 6662(a)
1991 $4,718 $ 944
1992 5,026 1,005
1993 6,253 1,251
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Unless otherwise indicated, all section references are to the
Internal Revenue Code in effect for the years in issue, and all
Rule references are to the Tax Court Rules of Practice and
Procedure. The issues for decision are whether petitioner is
entitled to deductions for alimony or dependency exemptions for
his three children during each of the years in issue, whether he
is entitled to claim head of household status for 1993, and
whether he is liable for the penalties determined by respondent.
FINDINGS OF FACT
Some of the facts have been stipulated, and the stipulated
facts are incorporated in our findings by this reference.
Petitioner resided in Lanham, Maryland, at the time that he filed
his petition.
Petitioner was previously married to Cynthia J. Baker.
During the marriage, petitioner and his then wife had three
children--Darrell Wilson and Jerrell Wilson, twins born
November 13, 1971, and Tonya Elizabeth Wilson, born August 11,
1978. Petitioner and his former wife were divorced in 1983.
The Final Judgment of Dissolution of Marriage, filed
March 2, 1983, provided in part as follows:
2. The primary physical residence of the three
minor children of the parties * * * shall be with the
Wife. The secondary physical residence of the children
shall be with the Husband.
3. Both parents shall share parental
responsibility with respect to the children, and shall
confer on all major decisions affecting the welfare of
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the children, making all such major decisions jointly,
including decisions concerning rearing, education,
medical and dental care, religious training, and any
other aspect of the children's lives affecting their
welfare and best interests.
* * * * * * *
5. As and for combined and unallocated alimony
and support payments, the Husband shall pay to the Wife
the sum of $1,189.90 per month, by military allotment
beginning the month of March, 1983 and continuing
through February, 1985. Thereafter the Husband's
payments to the Wife shall be reduced to $600.00 per
month as and for child support and shall be paid by
military allotment, beginning March, 1985 and
continuing each and every month thereafter until said
children [illegible] their majority, become self-
supporting, marry or die, whichever event shall first
occur. If the Wife concludes her college education and
secures a full time job prior to March, 1985, then the
Husband's payments shall be reduced to $600.00 per
month at said time.
In 1991, 1992, and 1993, the three children lived with their
mother. They visited petitioner in the summer and on holidays.
During those years, the twins were students at Florida A&M
University in Tallahassee, Florida, and they stayed in a
dormitory during the school year.
On January 31, 1990, the Circuit Court for Montgomery
County, Maryland, found that petitioner was in arrears in the
payment of support for his three children and ordered him to make
monthly payments toward that support through the court clerk.
Petitioner made payments of $7,072 in 1991, $6,300 in 1992, and
$6,300 in 1993 pursuant to the court order.
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In the notice of deficiency sent January 26, 1995,
respondent disallowed petitioner's claimed alimony deductions in
the amount of $10,185 for 1991, $10,815 for 1992, and $10,800 for
1993. Respondent also disallowed the dependency exemptions
claimed for petitioner's three children and computed his tax
liability as a single person for each year. Respondent also
determined that petitioner was liable for the accuracy-related
penalty under section 6662(a). Under the heading "Other
Information" at the fourth page of the statutory notice,
respondent explained:
We have disallowed the dependency exemptions because
you did not qualify for them since you did not have
custody of the children and your divorce decree did not
specify that you are entitled to the exemptions. We
have therefore disallowed the head of household status
taken in 1993. Child support is not deductible as
alimony.
OPINION
Petitioner has the burden of proving that respondent's
determinations are erroneous. Rule 142(a); New Colonial Ice Co.
v. Helvering, 292 U.S. 435, 440 (1934).
With respect to the claimed alimony deductions, petitioner
presented no admissible evidence at trial that he made payments
during the years in issue to his former wife that qualified as
alimony. Under the terms of the agreement, as quoted in our
findings, alimony normally would have ceased being due to his
former wife in March 1985. Thereafter, he was obligated to make
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payments for child support, which is not deductible. As of the
time of the court order in 1990, petitioner was in arrears for
child support, and the only payments that petitioner has
substantiated were stipulated to have been made pursuant to that
court order.
During trial, petitioner presented a computer summary of
payments that he allegedly made to his former wife during the
years in issue. That summary, however, was prepared shortly
before trial and was not corroborated by any canceled checks or
other original documents. Petitioner was afforded the
opportunity after trial to present additional documents for
stipulation, but he did not do so. Petitioner has failed to
prove that he made any deductible alimony payments during the
years in issue.
To be entitled to a dependency exemption under section
151(c), petitioner must prove that he meets the conditions of
section 152(e) as follows:
(e) Support Test in Case of Child of Divorced
Parents, Etc.--
(1) Custodial parent gets exemption.--Except
as otherwise provided in this subsection, if--
(A) a child (as defined in section
151(c)(3)) receives over half of his support
during the calendar year from his parents--
(i) who are divorced or legally
separated under a decree of divorce or
separate maintenance,
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(ii) who are separated under a
written separation agreement, or
(iii) who live apart at all times
during the last 6 months of the calendar
year, and
(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 (hereinafter in this subsection
referred to as the "custodial parent").
(2) Exception where custodial parent releases
claim to exemption for the year.--A child of
parents described in paragraph (1) shall be
treated as having received over half of his
support during a calendar year from the
noncustodial parent if--
(A) the custodial parent signs a written
declaration (in such manner and form as the
Secretary may by regulations prescribe) that
such custodial parent will not claim such
child as a dependent for any taxable year
beginning in such calendar year, and
(B) the noncustodial parent attaches
such written declaration to the noncustodial
parent's return for the taxable year
beginning during such calendar year.
For purposes of this subsection, the term
"noncustodial parent" means the parent who is not
the custodial parent.
(3) Exception for multiple-support
agreement.--This subsection shall not apply in any
case where over half of the support of the child
is treated as having been received from a taxpayer
under the provisions of subsection (c).
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(4) Exception for certain pre-1985
instruments.--
(A) In general.--A child of parents
described in paragraph (1) shall be treated
as having received over half his support
during a calendar year from the noncustodial
parent if--
(i) a qualified pre-1985 instrument
between the parents applicable to the
taxable year beginning in such calendar
year provides that the noncustodial
parent shall be entitled to any
deduction allowable under section 151
for such child, and
(ii) the noncustodial parent
provides at least $600 for the support
of such child during such calendar year.
For purposes of this subparagraph, amounts
expended for the support of a child or
children shall be treated as received from
the noncustodial parent to the extent that
such parent provided amounts for such
support.
(B) Qualified pre-1985 instrument.--For
purposes of this paragraph, the term
"qualified pre-1985 instrument" means any
decree of divorce or separate maintenance or
written agreement--
(i) which is executed before
January 1, 1985,
(ii) which on such date contains
the provision described in subparagraph
(A)(i), and
(iii) which is not modified on or
after such date in a modification which
expressly provides that this paragraph
shall not apply to such decree or
agreement.
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The divorce decree in the proceeding between petitioner and his
former spouse did not award custody to petitioner and was silent
as to whether he was entitled to the exemption otherwise
allowable under section 151. There is no evidence that
petitioner's former wife released her claim to exemptions for the
children, and there is no evidence as to the amounts for support
of the children provided by petitioner's former wife. Thus,
petitioner has failed to prove that he furnished more than
one-half the support for any of the children. Because petitioner
has not shown that he qualifies under section 152(a) or (e),
supra, he is not entitled to claim the children as dependents
during the years in issue.
Petitioner failed to prove that he maintained as his home a
household that constituted the principal abode of any of his
children for more than one-half of 1993. Thus, he does not
qualify as a head of a household under section 2(b)(1)(A)(i).
Respondent, therefore, correctly used rates applicable to single
taxpayers in computing petitioner's tax liability for that year.
Section 6662(a) imposes a 20-percent addition to tax on any
portion of an underpayment that is attributable to negligence or
disregard of rules and regulations. Sec. 6662(b)(2). Section
6662(c) defines negligence as including any failure to make a
reasonable attempt to comply with the provisions of the Internal
Revenue Code. Section 6664(c)(1) provides:
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(c) Reasonable Cause Exception.--
(1) In general.--No penalty shall be imposed
under this part with respect to any portion of an
underpayment if it is shown that there was a
reasonable cause for such portion and that the
taxpayer acted in good faith with respect to such
portion.
So far as the record reflects, petitioner's deduction of alimony
had no factual basis. Although he did substantiate payments
toward support of his children, he has failed to prove that he
made a reasonable effort to determine whether those payments
qualified him for dependency exemptions for the years in issue or
for head of household status for 1993. He has failed to prove
that he is not liable for the penalties determined by respondent.
Decision will be entered
for respondent.