*23 Decision will be entered under Rule 50.
1. Dependency credits claimed by petitioner for the taxable years denied for failure of proof to show that she contributed more than one-half of her minor son's support.
2. Under the decree of divorce obtained by petitioner, her former husband was required to pay $ 100 per month for her support and maintenance and $ 50 per month for the support and maintenance of their minor son. Beginning in September of 1948, the monthly payments made by him to petitioner amounted to only $ 100 and they continued at that rate throughout 1949. Held, that $ 50 of the $ 100 so received by petitioner from her former husband in September 1948 and in each month thereafter through 1949 must be regarded as having been paid for the support and maintenance of the son, and only $ 50 constituted alimony includible in the income of petitioner within the meaning of section 22 (k) of the Internal Revenue Code.
*275 The respondent has determined deficiencies in income tax against the petitioner for the years 1948 and 1949 of $ 143.84 and $ 233.69, respectively. The questions are whether petitioner, during the taxable years, contributed over half of the support for her minor son so as to be entitled to dependency credits for the said years, under section 25 (b) of the Internal Revenue Code, and whether, during the taxable years, she received alimony payments of $ 1,200 per year which were includible in her income, under section 22 (k) of the Code, or in those years received lesser amounts as such alimony.
FINDINGS OF FACT.
Petitioner, an individual, is a resident of Los Angeles, California. She filed her income tax returns for the years 1948 and 1949 with the collector*25 of internal revenue for the sixth district of California.
On July 5, 1945, she received a final decree of divorce from C. Clark Blyth in the Superior Court of the State of California for Alameda *276 County. In the order it was provided that the husband should pay for her support and maintenance $ 100 a month, and for the support and maintenance of Robert Clark Blyth, the minor son of the parties, the sum of $ 50, the said payments to begin on July 1, 1945, and to continue thereafter on the first day of each month, until further order of the court. Robert Clark Blyth was born December 17, 1931. Prior to the divorce, the parties had executed an agreement, wherein it was provided that legal custody and control of their son should be vested in the wife, including the right to take the son out of the State of California, but at all times and places subject to the right of the husband to see and to have the child with him at reasonable times and places and under circumstances consonant with the welfare of the child and convenience of the wife.
The premises where petitioner and Robert resided consisted of a 3-bedroom apartment, for which petitioner paid $ 140 a month rent. At the*26 beginning of 1948, Robert was attending Los Angeles High School. In September of 1948, he was placed in Harvard Military School by petitioner's former husband or his mother. Harvard Military School is a boarding school, located in the vicinity of Los Angeles. It was not inexpensive. This action was taken without procuring petitioner's consent but she took no steps to prevent it. She was very doubtful that Robert would stay at the school. All of the costs for Robert's attendance at the school were paid by petitioner's former husband or his mother. During his attendance to the school Robert would return to his mother's apartment at rather frequent intervals. On occasions, he would be there for a short time only; at other times he would spend the night or a weekend.
In 1948, and prior to Robert's entry into Harvard Military School, petitioner expended approximately $ 100 per month for food for the two of them. She bought Robert's clothing, which included full suits, slacks, shirts, shoes, and the like. Due to the large size of his feet, the cost of his shoes was above average. The wear and tear on his clothing and shoes was substantial -- at least what might be expected of*27 a boy his age. When he was attending high school petitioner gave him $ 5 a week as spending money, which was also to cover his lunches.
Robert was continued in Harvard Military School from September 1948 through the school year, which ended the following June. He again entered school in the fall of 1949, and continued during the remainder of the year. During all of that period, his costs at the school were borne by his father or his grandmother. His habit of returning home at intervals for a short period or for overnight or the weekend continued in 1949, as it had been in 1948.
During the summer vacation periods he spent an undetermined amount of time with his father.
*277 After Robert was entered in Harvard Military School, in September of 1948, his father reduced his monthly payments to petitioner from $ 150 to $ 100 per month. He obtained no modification of the final order of the superior court, but took the position that since his son's tuition and board at the Harvard Military School were being supplied at no cost to petitioner, he should not be expected to pay the $ 50 per month which had been provided in the court order for the maintenance and support of the son.
*28 In or about February of 1951, petitioner petitioned the court to order payment of the $ 50 per month which had been suspended by her former husband in September of 1948. The matter was settled by agreement, wherein the former husband agreed to pay the delinquent amount of $ 1,500. Payment of that amount was to be spread over a period of time.
In her income tax returns for 1948 and 1949, petitioner claimed dependency credits for her minor son. In her return for 1948, she reported as income, alimony in the amount of $ 1,000, and in her return for 1949, she reported as income, alimony in the amount of $ 600.
In his determination of the deficiencies herein, the respondent disallowed the dependency credit claimed by petitioner for her minor son for both years and increased her income from alimony to $ 1,200 for each year.
OPINION.
Petitioner is entitled, under section 25 (b) of the Internal Revenue Code, 1 to the dependency credits claimed for her son, provided she contributed over half of his support for each of the years herein.
*29 Petitioner kept no books or records of her living expenses and was unable to show with any great exactitude what she did spend in support of her son. She testified as to the nature of the items for which the expenditures were made in his support and her recollection of the range of prices expended therefor. With her son she occupied a 3-bedroom apartment for which she paid a rental of $ 140 per month. *278 She bought his clothing, gave him a weekly allowance of $ 5 as spending and lunch money, and spent approximately $ 100 a month on food for the two of them. This continued until September 1948, when, at the instigation of her former husband and his mother, her son was placed in Harvard Military School. This school was a boarding school and petitioner paid none of the costs of her son's attendance therein. The amounts expended for tuition, uniforms and board at the school have not been shown, but the school was not regarded as an inexpensive school.
The petitioner has made a stronger case for 1948 than for 1949, since up to September of 1948, she paid all of Robert's expenses over and above the $ 50 per month received from his father therefor, whereas in 1949, and at the*30 expense of his father or grandmother, Robert was in attendance at the school for the full year, except for vacation periods. It does appear that petitioner provided some support even while Robert was at boarding school, but from a comparative standpoint, the amount so expended was small. Taking into account petitioner's testimony as to her expenditures in maintaining a home and supplying food for herself and Robert and for his clothing and other expenses, and considering the monthly payments received for Robert's support from his father at least up to September 1948, and making allowance for the expenditures for his room, board, tuition, and other expenses at the military school, which such expenses were not borne by petitioner, we are unable to conclude that petitioner has shown that she contributed over one-half of her son's support in either 1948 or 1949. For failure to make such a showing, the respondent's disallowance of the dependency credits claimed for the said years is sustained.
As to the alimony issue, however, the decision must be for the petitioner. Under section 22 (k) of the Internal Revenue Code, 2 alimony payments such as the $ 100 per month covered by the final*31 decree of divorce herein are includible in the gross income of the wife. It is specifically provided, however, that the provision stated *279 is not to apply to that part of such payments which under the decree is for the support of a minor child of the husband, and it is further provided that in case the payment actually made under the order is less than the amount specified in the decree, the payment which is made shall, to the extent of the sum payable for the support of the minor child, be considered as the payment for such support. It accordingly follows that, by and under the provisions of section 22 (k), $ 50 of the payment made to petitioner by her former husband in each month of the years 1948 and 1949 is to be treated as having been paid for the support of their son, Robert, and is not alimony includible in petitioner's gross income within the meaning of that section. In determining otherwise, the respondent was in error.
*32 Decision will be entered under Rule 50.
Footnotes
1. SEC. 25. CREDITS OF INDIVIDUAL AGAINST NET INCOME.
(b) Credits for Both Normal Tax and Surtax. --
(1) Credits. -- There shall be allowed for the purposes of both the normal tax and the surtax, the following credits against net income:
* * * *
(D) An exemption of $ 600 for each dependent whose gross income for the calendar year in which the taxable year of the taxpayer begins is less than $ 500, except that the exemption shall not be allowed in respect of a dependent who has made a joint return with his spouse under section 51 for the taxable year beginning in such calendar year.
* * * *
(3) Definition of dependent. -- As used in this chapter the term "dependent" means any of the following persons over half of whose support, for the calendar year in which the taxable year of the taxpayer begins, was received from the taxpayer:
(A) a son or daughter of the taxpayer, or a descendant of either,↩
2. SEC. 22. GROSS INCOME.
(k) Alimony, Etc., Income. -- In the case of a wife who is divorced or legally separated from her husband under a decree of divorce or of separate maintenance, periodic payments (whether or not made at regular intervals) received subsequent to such decree in discharge of, or attributable to property transferred (in trust or othewise) in discharge of, a legal obligation which, because of the marital or family relationship, is imposed upon or incurred by such husband under such decree or under a written instrument incident to such divorce or separation shall be includible in the gross income of such wife, and such amounts received as are attributable to property so transferred shall not be includible in the gross income of such husband. This subsection shall not apply to that part of any such periodic payment which the terms of the decree or written instrument fix, in terms of an amount of money or a portion of the payment, as a sum which is payable for the support of minor children of such husband. In case any such periodic payment is less than the amount specified in the decree or written instrument, for the purpose of applying the preceding sentence, such payment, to the extent of such sum payable for such support, shall be considered a payment for such support. * * *↩