Opinion
Docket No. 33154.
1952-08-15
RICHARD P. PRICKETT, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT.
Roleigh Lee Stubbs, Esq., for the petitioner. Fortescue W. Hopkins, Esq., for the respondent.
Held, petitioner failed to prove that he contributed in the taxable year 1947 over half the support of his four minor children who were living with his former wife. Roleigh Lee Stubbs, Esq., for the petitioner. Fortescue W. Hopkins, Esq., for the respondent.
Petitioner seeks a redetermination of a deficiency in income tax for the calendar year 1947 in the amount of $213.80.
The sole issue is whether the petitioner is entitled to dependency credits for his four children in the taxable year 1947.
The case was submitted on a stipulation of facts and exhibits offered in evidence. The stipulated facts are found accordingly.
FINDINGS OF FACT.
The petitioner is an individual residing at Keyser, West Virginia. His return for the period involved was filed with the collector of internal revenue for the district of Parkersburg, West Virginia.
During the year 1947 the petitioner was the father of four minor children, none of whom had any income during 1947 and all were unmarried.
The petitioner and his former wife, Treca May Prickett, were divorced by a decree entered by the circuit court of Marion County, West Virginia, on November 29, 1943. The decree of divorce granted the custody of the petitioner's four children to his wife, and required the petitioner to pay to her the sum of $75 per month ‘for the support and maintenance of the plaintiff and of the children herein given to her care.‘ The decree made no specific allocation as to support and alimony. Pursuant to the divorce decree the petitioner made payments of $75 per month to his former wife during the taxable year 1947. The four children resided with their mother throughout the year 1947 in a house provided by the petitioner rent free. The petitioner also contributed to the support of his children medical expenses in the amount of $38.40 and clothing in the amount of $147.55, or a total of $185.95.
The former wife of the petitioner had no other income and she and the four children were entirely dependent upon the $75 per month she received pursuant to the decree of the divorce.
The respondent in determining his deficiency allowed as a deduction the amount of $900 claimed by the petitioner as paid under the divorce decree to his former wife in 1947, and such allowance has not been assigned as error by the petitioner. The exemptions claimed by the petitioner for his four children were disallowed.
The petitioner has failed to prove that he contributed more than one-half the support of his four children during the taxable year 1947.
OPINION.
LEMIRE, Judge:
The petitioner contends that as the payments he made pursuant to the divorce decree for the support of his wife and children, his other contributions, and the rent free house he provided, constituted their entire source of income in 1947, he was their chief support and it was not necessary to prove the particular amount he contributed, or the cost of the support and maintenance of the children. M. A. Willem, 39 B.T.A. 898.
The petitioner's reliance upon the Willem case, supra, undoubtedly furnishes the explanation of the inadequacy of his proof to support his right to the dependency exemptions. The Willem case, supra, involved the provisions of the Revenue Act of 1936, and is not decisive of the instant case, which is to be resolved under the revenue acts applicable to the taxable year 1947.
Section 25(b)(3) of the Internal Revenue Code, as amended by section 10 of the Individual Income Tax Act of 1944, requires one claiming a dependency exemption to establish that he furnished more than one-half the support of such dependent in the taxable year. It further provides that a payment to a wife which is includible under section 22(k) or section 171 in the gross income of such wife shall not be considered a payment by her husband for the support of any dependent.
The decree of divorce involved herein provided for monthly payment to the wife for her support and maintenance and that of the children given to her care. Under sections 22(k) and 23(u), added by the Revenue Act of 1942, the monthly payments made by the petitioner pursuant to such divorce decree constitute taxable income to the divorced wife and a deduction from gross income by the husband. Dora H. Moitoret, 7 T.C. 640.
This record establishes that during the taxable year 1947 the petitioner contributed toward the support of his four children a total of $185.95 for clothing and medical expenses. He also furnished rent free the home occupied by his former wife and his children. No testimony was offered as to the fair rental value of such home. The record does not show what the cost of the support and maintenance of the four children was nor from whom they drew the major part of the cost in the taxable year in question. The greater part of the cost may have been furnished by their mother from the $900 she received under the divorce decree, no part of which may be considered as a contribution by the husband for the support of his children. The petitioner has failed to show that he contributed more than one-half the support of his four minor children in the taxable year 1947. We, therefore, hold that the respondent properly disallowed the dependency exemptions claimed by the petitioner in the taxable year 1947 for his four minor children.
Decision will be entered for the respondent.