T.C. Summary Opinion 2002-100
UNITED STATES TAX COURT
FREDERICK LEROY McGEE, JR., Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 4928-01S Filed July 30, 2002.
Frederick Leroy McGee, Jr., pro se.
William R. Shump, for respondent.
GOLDBERG, 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. The decision to be
entered is not reviewable by any other court, and this opinion
should not be cited as authority. Unless otherwise indicated,
subsequent section references are to the Internal Revenue Code in
effect for the years at issue, and all Rule references are to the
Tax Court Rules of Practice and Procedure.
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Respondent determined deficiencies in petitioner’s Federal
income taxes for 1997 and 1998 in the amounts of $4,326 and
$2,694, respectively. The issues for decision are: (1) Whether
petitioner is entitled to dependency exemption deductions; (2)
whether petitioner is entitled to head of household status; and
(3) whether petitioner is entitled to earned income credits for
the years at issue.
Some of the facts in this case have been stipulated and are
so found. The stipulation of facts and the attached exhibits are
incorporated herein by this reference. At the time the petition
was filed, petitioner lived in Seaford, Delaware.
Petitioner was married to Karen S. Brittingham (Ms.
Brittingham) in 1976. Petitioner and Ms. Brittingham had four
children from their marriage: Ryan Scott McGee (Ryan), born July
28, 1979; Natalie Lauren McGee (Natalie), born January 1, 1983;
Adam Tyler McGee (Adam), born July 11, 1987; and Jordan Kyle
McGee (Jordan), born July 31, 1990 (collectively the children).
In 1989 or 1990, petitioner and Ms. Brittingham had a four-
bedroom house built for the family (family home). The family
home was located at 1201 Atlanta Circle, Seaford, Delaware.
Petitioner and Ms. Brittingham were divorced in 1992.
Pursuant to the Stipulation And Order In Regard To Custody
(custody order), dated May 19, 1993, custody of the children was
to be “held jointly with equal shared placement of the children”.
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The custody order provided a detailed schedule of placement that
was to operate on 2-week intervals. The custody order granted
physical placement of the children with petitioner for 3 days in
the first week and 4 days in the second week. Ms. Brittingham
was granted physical placement of the children for 4 days in the
first week and 3 days in the second week. This 2-week placement
schedule was to be maintained as long as the custody order was in
effect. Additionally, the custody order provided that neither
petitioner nor Ms. Brittingham would seek child support payments
from the other. The custody order was silent as to which parent
could claim dependency exemptions for Federal income tax
purposes.
Petitioner lived in and maintained the family home after the
divorce. Petitioner and Ms. Brittingham reached an agreement at
the time of the divorce whereby Ms. Brittingham deeded her
interest in the family home to petitioner.1
Petitioner began to experience financial difficulties in
1997. He claimed that the divorce had detrimental effects on his
credit. Petitioner stopped making mortgage payments on the
family home at the end of 1996 or in early 1997. The family home
was foreclosed upon in August or September of 1998. After
relinquishing the family home to foreclosure, petitioner was
1
It cannot be determined from the record if the
agreement was a part of or incorporated into the divorce decree.
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unable to obtain permanent housing due to his poor credit. He
stayed in motels and at his parents’ home for the remainder of
1998.
Petitioner has been employed by various construction
management companies throughout his career. Petitioner was laid
off from Century Engineering, Inc., in the fall of 1996 and did
not obtain steady employment until the spring of 1997. He was
employed by the Hackney Group from the spring of 1997 until he
was laid off in December 1997. Petitioner worked for Capital
Contractors in 1998.
Ms. Brittingham was employed as a nurse in 1997 and 1998.
For the years at issue, Ms. Brittingham maintained a four-bedroom
home located at 42 Garden Lane, Seaford, Delaware. Adam and
Jordan lived in Ms. Brittingham’s home when she had custody.
Petitioner testified that the custody order was strictly
followed, as to all the children, through 1996. During 1997,
Ryan and Natalie stopped adhering to the custody schedule, both
choosing to live primarily with Ms. Brittingham.2
Petitioner testified that he maintained the shared placement
schedule as to Adam and Jordan from January 1997 through November
17, 1998. However, petitioner further testified that Adam and
2
For purposes of this opinion, Ryan and Natalie are not
at issue because petitioner did not claim either of these
children as dependents or qualifying children for 1997 and 1998.
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Jordan spent more time during the summer months at Ms.
Brittingham’s residence.
On November 17, 1998, a custody hearing was held before the
Family Court of the State of Delaware In and For Sussex County
(Family Court) at Ms. Brittingham’s request. At the custody
hearing, Ms. Brittingham contended that petitioner had not
complied with the placement schedule in the custody order and
that during 1998, Adam and Jordan lived with her a majority of
the time. An Order - Motion And Affidavit To Modify Custody,
dated January 19, 1999, granted Ms. Brittingham sole custody and
physical placement of Adam and Jordan.3 Petitioner was granted
visitation on alternate weekends. Subsequently, the Family Court
ordered petitioner to pay child support retroactive to November
17, 1997.
On petitioner’s respective 1997 and 1998 Federal income tax
returns, he claimed dependency exemption deductions for Adam and
Jordan, head of household filing status, and earned income
credits. Petitioner computed the earned income credit claimed on
each return by treating Adam and Jordan as qualifying children.
Petitioner alleges that an employee in the local office of
the Internal Revenue Service (IRS) advised him that he was
3
In the same order, Ms. Brittingham was also granted
sole custody of Natalie. Ryan was emancipated on June 10, 1998;
thus he was not a party to the order.
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entitled to claim two dependency exemption deductions because the
custody order provided equal placement of the children.
For the years at issue, respondent disallowed the dependency
exemption deductions because petitioner failed to establish that
he was entitled to the exemptions. Respondent further determined
that petitioner’s filing status was single, not head of
household, and also disallowed the earned income credits.
The determinations of the Commissioner in a notice of
deficiency are presumed correct, and the burden is on the
taxpayer to show that the determinations are incorrect. Rule
142(a); Welch v. Helvering, 290 U.S. 111, 115 (1933).4
Dependency Exemption
Section 151(c) allows a taxpayer to deduct an annual
exemption amount for each dependent of the taxpayer. Section
152(a)(1) defines the term “dependent” to include a taxpayer’s
child, provided that more than half of the child’s support was
received from the taxpayer during the calendar year. However,
special rules apply in the case of a child of divorced parents.
See sec. 152(e).
Pursuant to section 152(e)(1), if a child receives over half
4
Sec. 7491 does not apply in this case to shift the
burden of proof to respondent because petitioner neither alleged
that sec. 7491 was applicable nor established that he fully
complied with the substantiation requirements of sec.
7491(a)(2)(A).
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of his support during the calendar year from divorced parents,
and such child is in the custody of one or both parents for more
than one-half of the calendar year, then such child is treated
for purposes of section 152(a) as receiving over half his support
from the parent having custody for a greater portion of the
calendar year. For purposes of section 152(e), “custody” in a
split placement arrangement is deemed to be with the parent who
has physical custody of the child for the greater portion of the
calendar year. Sec. 1.152-4(b), Income Tax Regs.
Petitioner testified that in 1997 and 1998 he strictly
complied with the custody order, which provided for equal shared
placement of the children between petitioner and Ms. Brittingham.
However, petitioner testified that Adam and Jordan spent more
time at Ms. Brittingham’s residence in the “summertime because
they didn’t want to stay with a baby sitter.” Petitioner’s
testimony is contradictory as to the amount of time petitioner
had physical custody of Adam and Jordan in 1997 and 1998. Since
neither of petitioner’s contradicting statements supports the
position that petitioner had physical custody of Adam and Jordan
for a greater portion of 1997 and 1998 than did Ms. Brittingham,
we need not analyze the credibility of petitioner’s testimony on
this issue.
Assuming, arguendo, that the custody order was strictly
followed in every respect in 1997 and 1998, Adam and Jordan would
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have been in the physical custody of each parent for exactly half
of each of the years at issue, and not in the custody of
petitioner for a greater portion of either year.
Petitioner presented no corroborative evidence showing that
he maintained physical custody of Adam and Jordan for a greater
portion of the 1997 or 1998 calendar years than did Ms.
Brittingham. In fact, petitioner’s own testimony indicates that
Adam and Jordan were in the physical custody of Ms. Brittingham
for a greater portion of time in each of the years at issue.
Petitioner has failed to establish that he has met the custody
requirement under section 152(e), and, accordingly, he is not
treated as having provided over half the support of Adam and
Jordan in each of the years at issue.
Petitioner’s claim that he is entitled to the dependency
exemption deductions because of the advice of an IRS employee is
without merit. This Court has previously held that the
authoritative sources of Federal tax law are statutes,
regulations, and judicial case law and not informal IRS sources.
Zimmerman v. Commissioner, 71 T.C. 367, 371 (1978), affd. without
published opinion 614 F.2d 1294 (2d Cir. 1979); Green v.
Commissioner, 59 T.C. 456, 458 (1972). Additionally, in order to
ensure uniform enforcement of the tax law, the Commissioner must
follow authoritative sources of Federal tax law and may correct
mistakes of law made by IRS agents or employees. Dixon v. United
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States, 381 U.S. 68, 72 (1965); Massaglia v. Commissioner, 286
F.2d 258, 262 (10th Cir. 1961), affg. 33 T.C. 379 (1959). While
it is unfortunate that petitioner may have received unhelpful or
incorrect tax advice from an IRS employee, that advice does not
have the force of law and is not binding on the respondent or
this Court.
Because there is no corroborating evidence to substantiate
petitioner’s claimed dependency exemption deductions for the
years at issue, we hold that petitioner is not entitled to the
dependency exemption deductions for the 1997 and 1998 taxable
years. Respondent is sustained on this issue.
Head of Household Status
According to the relevant part of section 2(b), a taxpayer
shall be considered a head of household if such individual (1) is
not married at the close of the taxable year, and (2) maintains
as his home a household which constitutes for more than one-half
of the taxable year the principal place of abode of a son or
daughter of the taxpayer. Sec. 2(b)(1)(A)(i). Thus, petitioner
must establish that Adam and Jordan lived in petitioner’s home
for more than 6 months in both 1997 and 1998.
Because we determined above that Adam and Jordan were not in
the physical custody of petitioner for more than half of each
year at issue, petitioner could not have maintained a household
that was Adam and Jordan’s principal place of abode for more than
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one-half of 1997 or 1998. Accordingly, petitioner is not
entitled to the head of household filing status claimed for 1997
and 1998. Respondent is sustained on this issue.
Earned Income Credit
The relevant parts of section 32 provide that an individual
is eligible for the earned income credit if the individual has a
qualifying child. A “qualifying child” is one who satisfies a
relationship test, a residency test, and an age test. See sec.
32(c)(3).
Pursuant to section 32(c)(3)(A)(ii), the qualifying child
must have the same principal place of abode as the taxpayer for
more than one-half of the taxable year. Petitioner must show
that Adam and Jordan lived at petitioner’s residence for more
than 6 months in each year at issue.
As found above, petitioner has failed to establish that Adam
and Jordan had the same principal place of abode as the
petitioner for more than one-half of each taxable year at issue.
Therefore, petitioner does not have a qualifying child for
purposes of the earned income credit for either of the years at
issue. Accordingly, petitioner is not entitled to the earned
income credits claimed for 1997 and 1998. Respondent is
sustained on this issue.
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Reviewed and adopted as the report of the Small Tax Case
Division.
Decision will be entered
for respondent.