T.C. Summary Opinion 2007-83
UNITED STATES TAX COURT
SCOTT W. DENNISTON, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket Nos. 22157-05S. Filed May 24, 2007.
Scott W. Denniston, pro se.
Steven I. Josephy, for respondent.
DEAN, Special Trial Judge: This case was heard pursuant to
the provisions of section 7463 of the Internal Revenue Code.
Unless otherwise indicated, all section references are to the
Internal Revenue Code in effect for the year at issue, and all
Rule references are to the Tax Court Rules of Practice and
Procedure. Pursuant to section 7463(b), the decision to be
entered is not reviewable by any other court, and this opinion
shall not be treated as precedent for any other case.
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Respondent determined for 2002 a deficiency in petitioner’s
Federal income tax of $1,281. The sole issue for decision is
whether petitioner made alimony payments of $6,000 during 2002.
Background
The stipulation of facts and the exhibits received into
evidence are incorporated herein by reference. At the time the
petition in this case was filed, petitioner resided in Denver,
Colorado.
Petitioner and Christina Denniston (Ms. Katcher) were
married on February 13, 1998. They had three children from the
marriage.
In September of 2001, Ms. Katcher filed a petition for
divorce with the El Paso County District Court in Colorado (State
court). By a temporary order dated December 14, 2001, the State
court ordered petitioner to pay to Ms. Katcher alimony of $500,
retroactive to September 14, 2001, payable on the first of each
month until further order (temporary order).
Petitioner filed separately from Ms. Katcher for 2002, a
Form 1040, U.S. Individual Income Tax Return, prepared by H&R
Block. Petitioner claimed an alimony deduction of $6,000 on his
return, but Ms. Katcher failed to report any alimony income on
her return.
By order dated April 3, 2003, the marriage between
petitioner and Ms. Katcher was dissolved. In the Marriage
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Settlement Agreement which was attached to the Decree of
Dissolution of Marriage, petitioner agreed that his child support
payments were in arrears. In April of 2003, petitioner owed back
child support payments of $14,777.08.
On August 24, 2005, respondent issued to petitioner a notice
of deficiency disallowing the alimony deduction, determining that
petitioner failed to substantiate that he made any alimony
payments during 2002.
Discussion
Petitioner bears the burden of proving that respondent’s
determinations in the notice are erroneous. Rule 142(a); Welch
v. Helvering, 290 U.S. 111, 115 (1933).1
Section 215(a) allows a deduction for the payment of alimony
during a taxable year. Section 215(b) defines alimony as a
payment that is includable in the gross income of the recipient
under section 71. Section 71(a) provides that gross income
includes amounts received as alimony or separate maintenance
payments.
Under the temporary order, petitioner was obligated to pay
to Ms. Katcher alimony payments of $500 per month. Although not
specified in the temporary order, petitioner claims that the
1
Petitioner has not raised the issue of sec. 7491(a), which
shifts the burden of proof to the Commissioner in certain
situations. This Court concludes that sec. 7491 does not apply
because petitioner has not produced any evidence that establishes
the preconditions for its application.
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duration of the alimony payments was 1 year. Petitioner
therefore argues that he was entitled to claim an alimony
deduction of $6,000 on his return.
Respondent disagrees, contending that petitioner has failed
to provide any evidence to show that alimony payments of $6,000
were actually paid to Ms. Katcher during 2002.
At trial, petitioner testified that a total of $6,000 was
taken out from his paychecks during 2002 to satisfy his alimony
obligation under the temporary order. Respondent requested
petitioner to produce pay stubs showing that moneys were taken
out for alimony or a statement from Ms. Katcher acknowledging
receipt of alimony. Petitioner, however, was unable to provide
the requested documentation, claiming that both his former
employer and Ms. Katcher were uncooperative. Therefore, other
than his testimony, petitioner has not offered any evidence to
show that alimony was paid in 2002. Moreover, during this
period, the evidence shows that petitioner did not meet his child
support obligation. The Court is not required to accept
petitioner’s self-serving testimony. Geiger v. Commissioner, 440
F.2d 688 (9th Cir. 1971), affg. per curiam T.C. Memo. 1969-159;
see Shea v. Commissioner, 112 T.C. 183, 189 (1999).
Petitioner contends that H&R Block determined that he was
entitled to claim an alimony deduction of $6,000 based on the
documentation that he had presented to them at the time of the
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return preparation. It is well established that the duty of
filing accurate returns cannot be avoided by placing the
responsibility upon an agent. Pritchett v. Commissioner, 63 T.C.
149, 174 (1974); Soares v. Commissioner, 50 T.C. 909, 914 (1968).
Petitioner has the burden of proof. See Rule 142(a).
Petitioner has failed to show that he made alimony payments of
$6,000 in 2002. Accordingly, petitioner is not entitled to claim
an alimony deduction of $6,000 for 2002.
To reflect the foregoing,
Decision will be entered
for respondent.