T.C. Summary Opinion 2003-38
UNITED STATES TAX COURT
ROBERT JAMES MENTZEL, JR., Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 12228-01S. Filed April 21, 2003.
Robert James Mentzel, pro se.
Steven W. LaBounty, for respondent.
DINAN, 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
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effect for the year in issue, and all Rule references are to the
Tax Court Rules of Practice and Procedure.
Respondent determined a deficiency in petitioner’s Federal
income tax of $805 for the taxable year 1998.
The issue for decision is whether petitioner’s son resided
with petitioner for more than half of 1998, thereby entitling
petitioner to a dependency exemption deduction, to a child tax
credit, and to head of household filing status for that year.
Some of the facts have been stipulated and are so found.
The stipulations of fact and the attached exhibits are
incorporated herein by this reference. Petitioner resided in St.
Louis, Missouri, on the date the petition was filed in this case.
Petitioner and his former wife, Barbara Mentzel (Ms.
Mentzel) were divorced on February 27, 1995. The divorce decree
awarded petitioner and Ms. Mentzel joint legal custody of their
son, Robert James Mentzel III (Robert). The decree, which was
prepared using a standardized form, contained provisions
concerning who was to be awarded “primary” physical custody
versus “temporary” physical custody; these provisions had been
selected, struck out, and written over in a somewhat unclear
manner. The resulting language provided as follows:
The Petitioner [Ms. Mentzel] and Respondent [petitioner]
shall exercise Joint Legal Custody but the Primary
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Physical...[1] Care, custody and control of the minor child
awarded as follows: Robert James Mentzel III born Jan. 12,
1991 whose legal address shall be Petitioner’s residence.[2]
Respondent is awarded Temporary Custody of the minor child
as follows.
Various provisions were then spelled out in detail concerning how
many days each party was to have physical custody. In general,
the decree provided that petitioner was to have custody on Monday
and Thursday evenings and nights, on alternating weekends from
Friday evening through Sunday afternoon, and during the day on
Saturdays when Ms. Mentzel was working. According to additional
provisions attached as an exhibit to the divorce decree, each
party was to receive 3 weeks of vacation with Robert and a
detailed schedule was devised dividing time over holidays and
birthdays. The weekly, holiday, and birthday schedules all
included times of the day when custody was to change. The effect
of the holiday and birthday schedules was to divide Robert’s time
nearly equally between petitioner and Ms. Mentzel. The schedule
was not set in stone, however, as it provided for optional 3-day
1
This sentence was selected from an alternative sentence
providing “The Petitioner and Respondent shall exercise Joint
Legal and Physical...”.
2
It is unclear if an optional sentence was meant to be
inserted at this point. The box preceding this optional sentence
was not checked, but a blank line inside the sentence was filled
in with a “1”. The sentence provided “Visitation and Temporary
Custody per attached exhibit 1 incorporated in and made part of
the decree.” A document attached to the decree as Exhibit 1
provided the details concerning the vacation, holiday, and
birthday schedules discussed infra.
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weekends instead of the usual 2 days for petitioner, the
frequency of when Ms. Mentzel was to work on Saturdays was not
specified, and the decree contained a provision allowing the
parties to “make such changes in the physical custody schedule,
vacation, holiday and birthday schedule that they may agree on.”
Finally, the decree ordered petitioner to pay (a) child support
of $550 per month to Ms. Mentzel; (b) medical insurance premiums
for Robert; and (c) half of Robert’s uninsured medical expenses.
Petitioner filed a Federal income tax return for taxable
year 1998 with a filing status of head of household. On this
return, petitioner claimed a dependency exemption deduction and a
child tax credit for Robert. In the statutory notice of
deficiency, respondent changed petitioner’s filing status to
single and disallowed the dependency exemption deduction and
child tax credit.
A deduction generally is allowed for each dependent of a
taxpayer under section 151. Sec. 151(a), (c)(1). As a general
rule, a child of a taxpayer is a dependent of the taxpayer only
if the taxpayer provides over half of the child’s support for the
taxable year. Sec. 152(a). A special rule applies to taxpayer-
parents who are divorced, who are separated, or who live
separately for at least the last 6 months of the calendar year,
but who have custody of the child for more than half of the year
and who together provide over half of the child’s support. Sec.
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152(e)(1). Under this rule, the parent with custody of the child
for the greater portion of the year (the “custodial parent”)
generally is treated as having provided over half of the child’s
support, regardless of which parent actually provided the
support. Id. Custody is determined as follows:
“Custody”, for purposes of this section, will be determined
by the terms of the most recent decree of divorce or
separate maintenance, or subsequent custody decree, or, if
none, a written separation agreement. In the event of so-
called “split” custody, or if neither a decree or agreement
establishes who has custody, or if the validity or
continuing effect of such decree or agreement is uncertain
by reason of proceedings pending on the last day of the
calendar year, “custody” will be deemed to be with the
parent who, as between both parents, has the physical
custody of the child for the greater portion of the calendar
year.
Sec. 1.152-4(b), Income Tax Regs. An exception to the special
rule exists which entitles the noncustodial parent to the
dependency exemption deduction. Sec. 152(e)(2). For the
exception to apply, the custodial parent must sign a written
declaration releasing his or her claim to the deduction, and the
noncustodial parent must attach the declaration to his or her tax
return. Id. The Internal Revenue Service provides Form 8332,
Release of Claim to Exemption for Child of Divorced or Separated
Parents, which can be used as the written declaration required by
section 152(e)(2).
A credit generally is allowed to a taxpayer for each
qualifying child of the taxpayer. Sec. 24(a). Among other
requirements, a qualifying child is one for whom the taxpayer is
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entitled to a dependency exemption deduction under section 151.
Sec. 24(c)(1)(A).
As is applicable here, for a taxpayer to be entitled to head
of household filing status for a given taxable year, the taxpayer
must maintain “as his home a household which constitutes for more
than one-half of such taxable year the principal place of abode”
of a child of the taxpayer. Sec. 2(b)(1)(A)(i).
Petitioner argues that the divorce decree provided for split
physical custody and that petitioner had actual physical custody
of Robert for a greater number of days in 1998 than did Ms.
Mentzel. We agree that the divorce decree effectively provided
for split custody between petitioner and Ms. Mentzel. However,
we do not find that petitioner had actual custody of Robert for a
greater number of days than did Ms. Mentzel.
To corroborate petitioner’s assertion that Robert resided
with him for a greater number of days, petitioner provided a
calendar allegedly detailing the number of days he had physical
custody of Robert during that year. The days which petitioner
allegedly had custody of Robert are simply highlighted, and
monthly totals such as “B-14" and “M-17" indicate the alleged
total number of days petitioner and Ms. Mentzel each had custody
during that month. The yearly totals indicate petitioner had
custody for 186 days, Ms. Mentzel for 176 days, and child care
providers for 3 days. This calendar appears to have been filled
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out in preparation for trial rather than during the year in
issue: No other notations appear on the calendar, indicating it
likely was not used as a general calendar during that year.
Furthermore, the accuracy of the calendar is questionable because
it fails to distinguish between those days on which petitioner
had custody for the majority of the day and those days on which
he had custody for only a few hours; according to the divorce
decree and petitioner’s own testimony this would have happened on
many occasions. We do not find this calendar to be credible
evidence of the amount of time petitioner had physical custody of
Robert during 1998.
The terms of the divorce decree, after accounting for the
time Robert would have been in school and in child care, splits
the physical custody of Robert nearly equally between petitioner
and Ms. Mentzel. Understandably, the record in this case fails
to establish the exact number of days each of them actually spent
with Robert. However, because petitioner has failed to provide
credible evidence regarding this issue, the burden of proof
remains on him to show respondent’s determinations to be in
error. Sec. 7491(a)(1); Rule 142(a). Petitioner has failed to
show that he was Robert’s custodial parent during 1998, and
petitioner did not attach to his return a written declaration
signed by Ms. Mentzel. Thus, he is not entitled to the
dependency exemption deduction pursuant to the special rules of
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section 152(e). Furthermore, assuming arguendo that custody was
split exactly evenly, petitioner has failed to show that he
provided over half of Robert’s support during 1998; petitioner
therefore would not be entitled to the dependency exemption
deduction pursuant to the general rule of section 152(a).
Because petitioner is not entitled to the dependency
exemption deduction, he also is not entitled to the child tax
credit. Sec. 24(c)(1)(A). Finally, because petitioner has
failed to establish that Robert resided with him for more than
half of 1998, he is not entitled to head of household filing
status. Sec. 2(b)(1).
Reviewed and adopted as the report of the Small Tax Case
Division.
To reflect the foregoing,
Decision will be entered
for respondent.