T.C. Summary Opinion 2001-45
UNITED STATES TAX COURT
RANDALL ALBERT FRITSCHER, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 6008-00S. Filed April 3, 2001.
Randall Albert Fritscher, pro se.
Brandi B. Darwin, for respondent.
ARMEN, Special Trial Judge: This case was heard pursuant to
the provisions of section 7463 of the Internal Revenue Code in
effect at the time the petition was filed.1 The decision to be
entered is not reviewable by any other court, and this opinion
should not be cited as authority.
1
Unless otherwise indicated, all section references are to
the Internal Revenue Code in effect for 1997, the taxable year in
issue.
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Respondent determined a deficiency in petitioner’s Federal
income tax for the taxable year 1997 in the amount of $2,673.
The issues for decision are as follows:
(1) Whether petitioner is entitled to dependency exemptions
for his two daughters. We hold that he is not.
(2) Whether petitioner is entitled to head-of-household
filing status. We hold that he is not.
(3) Whether petitioner is entitled to an earned income
credit. We hold that he is not.
Background2
Some of the facts have been stipulated, and they are so
found. Petitioner resided in Keystone Heights, Florida, at the
time that his petition was filed with the Court.
A. Petitioner’s Marriage and Divorce
In June 1993, petitioner and Lee Ellen Phillips (Ms.
Phillips) were married in Duval County, Florida. Three years
later, in June 1996, the couple separated. Later that month,
petitioner commenced divorce proceedings. On December 22, 1997,
the circuit court for Duval County, Florida (the Duval County
court) entered a Final Judgment of Dissolution of Marriage (the
divorce decree).
2
At trial, we deferred ruling on certain evidentiary
objections (relating principally to relevancy) that respondent
reserved in the stipulation of facts. We now overrule those
objections.
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B. Petitioner’s Children
Petitioner and Ms. Phillips have two daughters, Kimberly
Brook Fritscher (Kimberly) and Michelle Ashley Fritscher
(Michelle). Kimberly was born in September 1991, and Michelle was
born in March 1994.
C. Court Orders Regarding Legal Custody of the Children
In September 1996, during the pendency of the divorce
proceedings between petitioner and Ms. Phillips, the Duval County
court issued an order granting Ms. Phillips’ motion for temporary
relief. Specifically, the court ordered that petitioner and Ms.
Phillips should have “shared parental responsibility” for
Kimberly and Michelle. Nevertheless, the court ordered: (1) The
“primary physical residence” of the children should be with Ms.
Phillips; (2) petitioner should have liberal visitation rights;
and (3) petitioner should pay child support to Ms. Phillips.
In September 1997, the Duval County court issued an order
regarding petitioner’s motion for contempt. In its order, the
court reserved jurisdiction on the issue whether Ms. Phillips was
in willful contempt “for failure to allow * * * [petitioner] to
have visitation and shared parental responsibility”. However,
the court granted temporary custody of Kimberly and Michelle to
petitioner.
In the divorce decree, the Duval County court continued to
direct that petitioner and Ms. Phillips should have “shared
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parental responsibility”. However, the court ordered: (1)
Petitioner should have the “primary physical residence and
custody of the children”; (2) Ms. Phillips should have both
liberal visitation rights and “the first option” with regard to
the children’s care; and (3) Ms. Phillips should pay child
support to petitioner.
D. The Children’s Places of Abode
Upon their separation in June 1996, petitioner moved into a
single-family house that was owned by his parents in Keystone
Heights, Florida, and Ms. Phillips moved into an apartment that
was maintained by her parents in Jacksonville, Florida. Kimberly
and Michelle went with their mother and lived with her.
In April 1997, Ms. Phillips moved into her own apartment in
Orange Park, Florida. As before, Kimberly and Michelle went with
their mother and lived with her.
At or about the time of his separation in June 1996,
petitioner was working for American Airlines at the Jacksonville
International Airport. Subsequently, his post of duty was
changed to the Dallas/Ft. Worth International Airport, where he
worked as a troubleshooter. Sometime in 1997, petitioner
resigned from the airline and went to work as a travel agent for
American Express in the Jacksonville area.3
3
One of the stipulated exhibits, a student registration
(continued...)
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As previously stated, the Duval County court granted
temporary custody of Kimberly and Michelle to petitioner in
September 1997. At that time, the children moved into
petitioner’s home in Keystone Heights, Florida, and resided with
their father throughout the balance of the year.
E. Petitioner’s 1997 Tax Return
On his income tax return, Form 1040, for 1997, petitioner
claimed head-of-household filing status. Petitioner also claimed
dependency exemptions for Kimberly and Michelle, and he
identified his daughters as qualifying children for purposes of
the earned income credit.
F. The Notice of Deficiency
Upon audit, respondent determined a deficiency in
petitioner’s income tax for 1997 in the amount of $2,673. In
determining the deficiency, respondent: (1) Adjusted petitioner’s
filing status from head of household to single; (2) disallowed
the dependency exemptions for Kimberly and Michelle; and (3)
disallowed the earned income credit.
3
(...continued)
statement for Kimberly, discloses petitioner’s “business name and
address” as American Airlines, Dallas, TX. The statement is
dated May 14, 1997.
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Discussion
A. Dependency Exemptions for Kimberly and Michelle
As relevant herein, a taxpayer is entitled to dependency
exemptions for his daughters if more than half of their support
is furnished by the taxpayer. See secs. 151(c) and 152(a)(1).
In the case of children whose parents are either divorced or
separated or who live apart at all times during the last 6 months
of the calendar year, section 152(e)(1) provides that the
custodial parent; i.e., the parent having custody for a greater
portion of the calendar year, is deemed to provide more than half
of the children’s support for such year.4 For purposes of this
rule, and as relevant herein, “custody” is determined by the
terms of the most recent decree of divorce or separate
maintenance, or subsequent custody decree. Sec. 1.152-4(b),
Income Tax Regs.
In the present case, Ms. Phillips had legal custody of
Kimberly and Michelle for a greater portion of 1997 by virtue of
the September 1996 order of the Duval County court.5
Accordingly, Ms. Phillips is considered to be the custodial
4
Exceptions to the general rule of sec. 152(e)(1) are not
applicable in the present case. See sec. 152(e)(2), (3), and
(4).
5
Indeed, at trial petitioner admitted that Ms. Phillips
“had the legal custody from the end of the summer of ‘96 until
Sept. 5, 1997.”
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parent within the meaning of section 152(e)(1), and she is the
one who is deemed to have provided more than half of Kimberly’s
and Michelle’s support. Petitioner is not, therefore, entitled
to dependency exemptions for his daughters in 1997. Respondent’s
determination is sustained.
B. Filing Status
As relevant herein, an individual qualifies as a head of a
household if such individual (1) is not married at the close of
his taxable year and (2) maintains as his home a household that
constitutes for more than one-half of such taxable year the
principal place of abode, as members of such household, of his
daughters.6 See sec. 2(b)(1)(A). The term “principal place of
abode” is synonymous with “home”. Sec. 1.2-2(c)(1), Income Tax
Regs.
The record demonstrates that Kimberly and Michelle lived
with Ms. Phillips, their mother, from January 1 through September
4, 1997, and that they lived with petitioner, their father, from
September 5 through December 31, 1997. It is clear, therefore,
that petitioner did not maintain a home in 1997 that was his
daughters’ principal place of abode for more than one-half of the
taxable year.
6
If a taxpayer’s daughter is not married, it is not
necessary that the taxpayer be entitled to a dependency exemption
for her under sec. 151 in order to qualify for head-of-household
filing status. See sec. 2(b)(1)(A).
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The fact that Kimberly and Michelle may not have enjoyed
ideal living arrangements with Ms. Phillips during the first 8
months of the year does not mean that their principal place of
abode was not with their mother. See Cubick v. Commissioner,
T.C. Memo. 1977-102.
In view of the foregoing, we hold that petitioner does not
qualify for head-of-household filing status in 1997.
Respondent’s determination is sustained.
C. Earned Income Credit
In the case of an eligible individual, section 32(a) allows
an earned income credit. As relevant herein, the term “eligible
individual” means any individual who has a qualifying child for
the taxable year.7 Sec. 32(c)(1)(A)(i). Also as relevant herein,
the term “qualifying child” means a daughter of the taxpayer who
has the same principal place of abode as the taxpayer for more
than one-half of the taxable year. Sec. 32(c)(3)(A).
The term “principal place of abode” as used in section
32(c)(3)(A) has essentially the same meaning as the term
“principal place of abode” as used in section 2(b)(1)(A). Sec.
1.32-2(c)(1), Income Tax Regs. Therefore, because we have
already decided that petitioner did not maintain a household that
7
An individual who does not have a qualifying child for
the taxable year may nevertheless qualify as an “eligible
individual”. Sec. 32(c)(1)(A)(ii). However, petitioner does not
so qualify because his income exceeded the statutory maximum.
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was the principal place of abode of Kimberly and Michelle for
more than one-half of 1997, it follows that petitioner did not
have a “qualifying child” in 1997 and is not entitled to an
earned income credit for that year. Respondent’s determination
is sustained.
Conclusion
Reviewed and adopted as the report of the Small Tax Case
Division.
In order to give effect to the foregoing,
Decision will be entered
for respondent.