T.C. Memo. 1996-387

UNITED STATES TAX COURT

WILSON BAKER, JR., Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 6227-95. Filed August 20, 1996.

Wilson Baker, Jr., pro se.

Deborah A. Harrington, for respondent.

MEMORANDUM FINDINGS OF FACT AND OPINION

COHEN, Chief Judge: Respondent determined deficiencies in

petitioner's Federal income taxes and penalties as follows:

 Penalty

 Year Deficiency Sec. 6662(a)

 1991 $4,718 $ 944

 1992 5,026 1,005

 1993 6,253 1,251
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Unless otherwise indicated, all section references are to the

Internal Revenue Code in effect for the years in issue, and all

Rule references are to the Tax Court Rules of Practice and

Procedure. The issues for decision are whether petitioner is

entitled to deductions for alimony or dependency exemptions for

his three children during each of the years in issue, whether he

is entitled to claim head of household status for 1993, and

whether he is liable for the penalties determined by respondent.

FINDINGS OF FACT

Some of the facts have been stipulated, and the stipulated

facts are incorporated in our findings by this reference. 

Petitioner resided in Lanham, Maryland, at the time that he filed

his petition.

Petitioner was previously married to Cynthia J. Baker. 

During the marriage, petitioner and his then wife had three

children--Darrell Wilson and Jerrell Wilson, twins born

November 13, 1971, and Tonya Elizabeth Wilson, born August 11,

1978. Petitioner and his former wife were divorced in 1983.

The Final Judgment of Dissolution of Marriage, filed

March 2, 1983, provided in part as follows:

2. The primary physical residence of the three

minor children of the parties * * * shall be with the

Wife. The secondary physical residence of the children

shall be with the Husband.

3. Both parents shall share parental

responsibility with respect to the children, and shall

confer on all major decisions affecting the welfare of
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the children, making all such major decisions jointly,

including decisions concerning rearing, education,

medical and dental care, religious training, and any

other aspect of the children's lives affecting their

welfare and best interests.

 * * * * * * *

5. As and for combined and unallocated alimony

and support payments, the Husband shall pay to the Wife

the sum of $1,189.90 per month, by military allotment

beginning the month of March, 1983 and continuing

through February, 1985. Thereafter the Husband's

payments to the Wife shall be reduced to $600.00 per

month as and for child support and shall be paid by

military allotment, beginning March, 1985 and

continuing each and every month thereafter until said

children [illegible] their majority, become selfsupporting, marry or die, whichever event shall first

occur. If the Wife concludes her college education and

secures a full time job prior to March, 1985, then the

Husband's payments shall be reduced to $600.00 per

month at said time.

In 1991, 1992, and 1993, the three children lived with their

mother. They visited petitioner in the summer and on holidays. 

During those years, the twins were students at Florida A&M

University in Tallahassee, Florida, and they stayed in a

dormitory during the school year.

On January 31, 1990, the Circuit Court for Montgomery

County, Maryland, found that petitioner was in arrears in the

payment of support for his three children and ordered him to make

monthly payments toward that support through the court clerk. 

Petitioner made payments of $7,072 in 1991, $6,300 in 1992, and

$6,300 in 1993 pursuant to the court order.
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In the notice of deficiency sent January 26, 1995,

respondent disallowed petitioner's claimed alimony deductions in

the amount of $10,185 for 1991, $10,815 for 1992, and $10,800 for

1993. Respondent also disallowed the dependency exemptions

claimed for petitioner's three children and computed his tax

liability as a single person for each year. Respondent also

determined that petitioner was liable for the accuracy-related

penalty under section 6662(a). Under the heading "Other

Information" at the fourth page of the statutory notice,

respondent explained:

We have disallowed the dependency exemptions because

you did not qualify for them since you did not have

custody of the children and your divorce decree did not

specify that you are entitled to the exemptions. We

have therefore disallowed the head of household status

taken in 1993. Child support is not deductible as

alimony.

OPINION

Petitioner has the burden of proving that respondent's

determinations are erroneous. Rule 142(a); New Colonial Ice Co.

v. Helvering, 292 U.S. 435, 440 (1934).

With respect to the claimed alimony deductions, petitioner

presented no admissible evidence at trial that he made payments

during the years in issue to his former wife that qualified as

alimony. Under the terms of the agreement, as quoted in our

findings, alimony normally would have ceased being due to his

former wife in March 1985. Thereafter, he was obligated to make
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payments for child support, which is not deductible. As of the

time of the court order in 1990, petitioner was in arrears for

child support, and the only payments that petitioner has

substantiated were stipulated to have been made pursuant to that

court order.

During trial, petitioner presented a computer summary of

payments that he allegedly made to his former wife during the

years in issue. That summary, however, was prepared shortly

before trial and was not corroborated by any canceled checks or

other original documents. Petitioner was afforded the

opportunity after trial to present additional documents for

stipulation, but he did not do so. Petitioner has failed to

prove that he made any deductible alimony payments during the

years in issue.

To be entitled to a dependency exemption under section

151(c), petitioner must prove that he meets the conditions of

section 152(e) as follows:

(e) Support Test in Case of Child of Divorced

Parents, Etc.--

(1) Custodial parent gets exemption.--Except

as otherwise provided in this subsection, if--

(A) a child (as defined in section

151(c)(3)) receives over half of his support

during the calendar year from his parents--

(i) who are divorced or legally

separated under a decree of divorce or

separate maintenance,
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(ii) who are separated under a

written separation agreement, or

(iii) who live apart at all times

during the last 6 months of the calendar

year, and

(B) such child is in the custody of one

or both of his parents for more than one-half

of the calendar year,

such child shall be treated, for purposes of

subsection (a), as receiving over half of his

support during the calendar year from the parent

having custody for a greater portion of the

calendar year (hereinafter in this subsection

referred to as the "custodial parent").

(2) Exception where custodial parent releases

claim to exemption for the year.--A child of

parents described in paragraph (1) shall be

treated as having received over half of his

support during a calendar year from the

noncustodial parent if--

(A) the custodial parent signs a written

declaration (in such manner and form as the

Secretary may by regulations prescribe) that

such custodial parent will not claim such

child as a dependent for any taxable year

beginning in such calendar year, and

(B) the noncustodial parent attaches

such written declaration to the noncustodial

parent's return for the taxable year

beginning during such calendar year.

For purposes of this subsection, the term

"noncustodial parent" means the parent who is not

the custodial parent.

(3) Exception for multiple-support

agreement.--This subsection shall not apply in any

case where over half of the support of the child

is treated as having been received from a taxpayer

under the provisions of subsection (c).
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(4) Exception for certain pre-1985

instruments.--

(A) In general.--A child of parents

described in paragraph (1) shall be treated

as having received over half his support

during a calendar year from the noncustodial

parent if--

(i) a qualified pre-1985 instrument

between the parents applicable to the

taxable year beginning in such calendar

year provides that the noncustodial

parent shall be entitled to any

deduction allowable under section 151

for such child, and

(ii) the noncustodial parent

provides at least $600 for the support

of such child during such calendar year.

For purposes of this subparagraph, amounts

expended for the support of a child or

children shall be treated as received from

the noncustodial parent to the extent that

such parent provided amounts for such

support.

(B) Qualified pre-1985 instrument.--For

purposes of this paragraph, the term

"qualified pre-1985 instrument" means any

decree of divorce or separate maintenance or

written agreement--

(i) which is executed before

January 1, 1985,

(ii) which on such date contains

the provision described in subparagraph

(A)(i), and

(iii) which is not modified on or

after such date in a modification which

expressly provides that this paragraph

shall not apply to such decree or

agreement.
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The divorce decree in the proceeding between petitioner and his

former spouse did not award custody to petitioner and was silent

as to whether he was entitled to the exemption otherwise

allowable under section 151. There is no evidence that

petitioner's former wife released her claim to exemptions for the

children, and there is no evidence as to the amounts for support

of the children provided by petitioner's former wife. Thus,

petitioner has failed to prove that he furnished more than

one-half the support for any of the children. Because petitioner

has not shown that he qualifies under section 152(a) or (e),

supra, he is not entitled to claim the children as dependents

during the years in issue.

Petitioner failed to prove that he maintained as his home a

household that constituted the principal abode of any of his

children for more than one-half of 1993. Thus, he does not

qualify as a head of a household under section 2(b)(1)(A)(i). 

Respondent, therefore, correctly used rates applicable to single

taxpayers in computing petitioner's tax liability for that year.

Section 6662(a) imposes a 20-percent addition to tax on any

portion of an underpayment that is attributable to negligence or

disregard of rules and regulations. Sec. 6662(b)(2). Section

6662(c) defines negligence as including any failure to make a

reasonable attempt to comply with the provisions of the Internal

Revenue Code. Section 6664(c)(1) provides:
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(c) Reasonable Cause Exception.--

(1) In general.--No penalty shall be imposed

under this part with respect to any portion of an

underpayment if it is shown that there was a

reasonable cause for such portion and that the

taxpayer acted in good faith with respect to such

portion.

So far as the record reflects, petitioner's deduction of alimony

had no factual basis. Although he did substantiate payments

toward support of his children, he has failed to prove that he

made a reasonable effort to determine whether those payments

qualified him for dependency exemptions for the years in issue or

for head of household status for 1993. He has failed to prove

that he is not liable for the penalties determined by respondent.

Decision will be entered

for respondent.