Cobb v. Commissioner

E. R. Cobb, Sr., Petitioner, v. Commissioner of Internal Revenue, Respondent Cobb v. Commissioner Docket No. 61219 United States Tax Court 28 T.C. 595; 1957 U.S. Tax Ct. LEXIS 168; May 31, 1957, Filed *168 Decision will be entered under Rule 50. Held, under the facts, that petitioner furnished more than one-half the cost of the support of his two minor children during the taxable year 1954, and is entitled to the credit for dependents pursuant to the provisions of sections 151 and 152, I. R. C. 1954. E. R. Cobb, Sr., pro se. Frederick T. Carney, Esq., for the respondent. LeMire, Judge. LEMIRE *595 Respondent determined a deficiency*169 in petitioner's income tax for the taxable year 1954 in the amount of $ 725.25. Certain issues raised are conceded by petitioner so that the sole question presented is whether petitioner is entitled to the dependency credit for his two minor children. *596 FINDINGS OF FACT. Petitioner is an individual residing in Birmingham, Alabama. In the taxable year 1954, he resided in Fountain City, Tennessee. His return for 1954 was filed with the district director of internal revenue for the district of Tennessee, at Nashville. Petitioner was separated from his wife in 1948. He obtained a divorce from his wife in 1950. The decree made no provision for support of the wife and the children, Marion, age 12, and E. R. Cobb, Jr., age 8. Subsequent to the divorce, the former wife resided in Florida. In 1954 the two children resided with their mother, except for a period of 5 weeks they spent with petitioner in Knoxville, Tennessee, and 2 or 3 weeks with their grandfather in Birmingham, Alabama. Petitioner was a pipefitter and his only income was from wages in the amount of $ 4,753.16. In 1954 petitioner sent his former wife 49 checks aggregating total payments of $ 1,385 for the support*170 of his two children. Petitioner also expended for their clothes and miscellaneous expenses a minimum of $ 250; for their transportation from Miami, Florida, to Knoxville, Tennessee, he paid $ 51; and he paid a doctor's bill of $ 25 for his son while in Knoxville. In addition to the aggregate of $ 1,711 for the above items, he furnished their board and lodging for 5 weeks while living with him in Knoxville. Petitioner testified that he had visited the children in Miami, Florida; that they and his former wife lived in an apartment, the rental of which was $ 74 per month. The former wife in 1954 was employed in the ticket office of the Eastern Air Lines at a salary of about $ 60 or $ 65 per week; she did not employ any help to look after the children while at work, but let the older child look after the younger. Petitioner also testified that his wife had no other income; and that she took a vacation in the Caribbean Islands or the West Indies every summer, when the children lived in his home. Petitioner's former wife has since remarried and the two children have been residing with petitioner since 1956. Petitioner testified he had claimed and was allowed the dependency credit for*171 the two children in prior years and was unaware the former wife had claimed them as dependents in the taxable year 1954. In his return for 1954, petitioner claimed dependency credit for his two children. The respondent disallowed the claim on the ground that petitioner had not established he furnished more than one-half the cost of their support. Petitioner furnished more than one-half the cost of the support of his two minor children during the taxable year 1954. *597 OPINION. The only question presented is the factual one as to whether petitioner furnished more than one-half the cost of the support of his two children in 1954. The applicable statutory provisions are contained in sections 151 and 152 of the Internal Revenue Code of 1954. 1 So far as pertinent here, the foregoing provisions of the 1954 Code are the same as those contained in section 25 (b) of the 1939 Code. *172 The burden is upon petitioner to establish that in the taxable year involved the amounts furnished constitute more than one-half the cost of the support of the dependents for whom the credit is claimed. Where the parties are divorced and the children are living with the former wife, as here, the duty of establishing the aggregate cost of support is rendered the more difficult. Petitioner, a pipefitter, appears pro se, and he was the only witness. The evidence presented was largely elicited through the assistance of the Court. Petitioner's testimony was refreshingly frank and truthful. The respondent does not question that petitioner contributed to the support of his children the amount of $ 1,711, and in addition, he maintained the two children in his home for a period of 5 weeks. Petitioner was unable to establish the precise amount which the former wife contributed to the support of their children. Nevertheless, the evidence as to her income, the manner in which she lived, and the other circumstances shown by the record, convince us that petitioner has carried the burden of showing that he furnished more than one-half the cost of the support of the two children in the taxable*173 year 1954, and we have so found as a fact. Due to other adjustments, Decision will be entered under Rule 50. Footnotes 1. SEC. 151. ALLOWANCE OF DEDUCTIONS FOR PERSONAL EXEMPTIONS. (a) Allowance of Deductions. -- In the case of an individual, the exemptions provided by this section shall be allowed as deductions in computing taxable income. * * * * (e) Additional Exemption for Dependents. -- (1) In general. -- An exemption of $ 600 for each dependent (as defined in section 152) -- * * * * (B) who is a child of the taxpayer and who (i) has not attained the age of 19 at the close of the calendar year in which the taxable year of the taxpayer begins, or (ii) is a student. * * * * (3) Child defined. -- For purposes of paragraph (1) (B), the term "child" means an individual who (within the meaning of section 152) is a son, stepson, daughter, or stepdaughter of the taxpayer. SEC. 152. DEPENDENT DEFINED. (a) General Definition. -- For purposes of this subtitle, the term "dependent" means any of the following individuals over half of whose support, for the calendar year in which the taxable year of the taxpayer begins, was received from the taxpayer (or is treated under subsection (c) as received from the taxpayer): (1) A son or daughter of the taxpayer, or a descendant of either,↩