T.C. Summary Opinion 2003-35
UNITED STATES TAX COURT
FEDNER FRANCOIS TOVAR, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 7040-01S. Filed April 7, 2003.
Fedner Francois Tovar, pro se.
Marshall R. Jones, for respondent.
LARO, Judge: This case was heard pursuant to section 7463.1
The decision to be entered is not reviewable by any other court,
and this opinion should not be cited as authority.
Petitioner petitioned the Court to redetermine respondent’s
determination of a $2,422 deficiency in petitioner’s 1999 Federal
1
Section references are to the applicable versions of the
Internal Revenue Code. Rule references are to the Tax Court
Rules of Practice and Procedure.
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income tax. The issues for decision are whether petitioner is
entitled to (1) a dependency exemption deduction for his
daughter, Samantha, (2) head of household filing status, and
(3) the earned income credit. We decide the first issue in the
affirmative. We decide the remaining two issues in the negative.
Background
Some facts have been stipulated. The parties’ stipulation
of facts and the exhibits submitted therewith are incorporated
herein by this reference. Petitioner resided in Alabama when his
petition was filed.
Petitioner filed electronically a 1999 Federal income tax
return, using the filing status of “Head of Household”. The
return was prepared by a representative from VITA, the Volunteer
Income Tax Assistance program. On that return, petitioner
reported total income of $16,274 and claimed a dependency
exemption deduction for his youngest daughter, Samantha, who was
born on October 22, 1980. Petitioner also claimed on his 1999
return that he was entitled to an earned income credit.
Petitioner and his former wife, Jeanine, were divorced in
October 1990. Approximately 15 months earlier, they had executed
and signed a notarized agreement entitled “Memorandum of Property
and Support Agreement After Separation”. In relevant part, the
agreement provided:
8. The Husband shall pay to the Wife, for
maintenance and support of the parties’ children,
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Winfred Scilla Tovar and Samantha C. Tovar, the sum of
three hundred twenty-five ($325.00) per month per
child, for a total of six hundred fifty dollars
($650.00) per month, beginning on June 1, 1989, and
continuing on the 5th day of each month thereafter,
provided that when one of said children reaches the age
of 18 years, marries, dies, or otherwise is emancipated
from parental control, the payment for that child shall
cease thereafter.
9. Provided that no arrearage in the payment of
child support exists, the Husband shall be entitled to
claim the child, Samantha C. Tovar, as his dependent
for tax purposes in any year in which separate tax
returns are filed, and the Wife, as the custodial
parent, expressly waives the right to claim that child
as her dependent for tax purposes in any year in which
separate tax returns are filed.
Petitioner gave a copy of this agreement to the VITA
representative to include with petitioner’s 1999 return. The
agreement was not included with that return as electronically
filed. Petitioner had included that agreement with each previous
Federal income tax return which he had filed since 1990. Shortly
after filing his 1999 return, petitioner mailed respondent two
copies of the agreement to be considered in connection with that
return.
Respondent determined (and reflected in a notice of
deficiency issued to petitioner) that petitioner was not entitled
to claim Samantha as his dependent. Accordingly, respondent
determined, petitioner’s correct filing status was single, and he
was not entitled to an earned income credit. The notice of
deficiency states as to respondent’s determination:
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ACCORDING TO THE DOCUMENT YOU SENT US [the agreement],
YOU COULD CLAIM YOUR CHILD SAMANTHA AS A DEPENDENT
UNTIL SHE WAS 18 YEARS OLD. SINCE SHE IS 20 NOW, * * *
WE CAN’T ALLOW YOU HER DEPENDENT EXEMPTION.
During the relevant year, Samantha was a full-time student
at the University of Miami, where she lived on campus. When not
living at school, Samantha lived with her mother. Samantha never
lived with petitioner during 1999.
Discussion
1. Dependency Exemption Deduction for Samantha
Respondent determined that the agreement allowed petitioner
to claim Samantha as his dependent only until her 18th birthday.
Respondent abandoned this determination on brief. Respondent’s
sole argument on brief is that petitioner may not claim Samantha
as a dependent because petitioner did not attach a copy of the
agreement to his 1999 return.
We reject respondent’s argument. Although petitioner’s 1999
return as electronically filed may not have included a copy of
the agreement, respondent received the agreement shortly
thereafter and in fact considered that agreement to be part of
petitioner’s return. In fact, respondent even relied upon the
agreement in arriving at the determination set forth in the
notice of deficiency. We reverse respondent’s determination as
to this issue.
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2. Filing Status
Respondent determined that petitioner was not entitled to
use the head of household filing status because the home he
maintained was not the principal place of abode of a qualifying
person for more than one-half of the taxable year. For this
purpose, a qualifying person includes a daughter such as
Samantha. See sec. 2(b)(1)(A)(i). Samantha’s principal place of
abode for more than one-half of 1999, however, would have to have
been in petitioner’s home for him to have qualified as a “head of
household”. See sec. 2(b)(1)(A)(ii). Because petitioner did not
meet this requirement, i.e., Samantha never lived in petitioner’s
home during 1999, we sustain respondent’s determination as to
this issue.
3. Earned Income Credit
Respondent determined that petitioner did not qualify for
the earned income credit for want of a qualifying child. Under
section 32, an eligible individual is allowed a credit which is
calculated as a percentage of his or her earned income, subject
to certain limitations. Sec. 32(a)(1). An individual with a
qualifying child is an eligible individual. Sec. 32(c)(1). For
this purpose, a qualifying child includes a child of a taxpayer
who has the same principal place of abode as the taxpayer for
more than half of the taxable year. Sec. 32(c)(3)(A). Because
petitioner did not meet this requirement, i.e., Samantha never
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lived in petitioner’s home during 1999, we sustain respondent’s
determination as to this issue.
Decision will be entered
under Rule 155.