Kirtland v. Commissioner

SIDNEY WILLIAMSON KIRTLAND, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT. Kirtland v. Commissioner Docket Nos. 88600, 88601. United States Board of Tax Appeals 39 B.T.A. 959; 1939 BTA LEXIS 950; May 23, 1939, Promulgated *950 Taxpayer, who was sole support for divorced wife and their two minor children over whom he in fact exercised family control, was head of a family within section 25:b):1) of the Revenue Act of 1934. Sidney W. Kirtland pro se. Arthur H. Fast, Esq., for the respondent. MURDOCK *959 The Commissioner determined a deficiency in income tax of $60.66 for 1934 and one of $61.21 for 1935. The only issue for decision is whether the petitioner is entitled in each year to exemption of $2,500 as head of a family. *960 FINDINGS OF FACT. The petitioner is an individual residing in Miami, Florida. He was an officer in the United States Navy in 1933 and resided with his wife and their two minor children in a rented house at Long Beach, California. He was at that time and during the taxable years on sea duty. The home port of his vessel was Long Beach, California. His wife told him that she wanted a divorce and he told her she coule have it. The children at that time were six and seven years old. The petitioner expected to remain on sea duty most of his time, expected to have no home where he could raise the children or where they could*951 visit him, and, therefore, agreed with his wife that the children should remain with her and he would pay her $250 a month for the support of herself and the children. The wife obtained a divorce in Nevada in 1933. She then moved with her two children to Coronado, California, which is about 100 miles from Long Beach. The three lived there in a rented house during all of 1934 and a part of 1935. They moved in 1935 to North Carolina and resided there during the remainder of the year 1935. The decree of divorce provided that the petitioner should pay to his wife for the support and maintenance of herself and her two minor children $200 per month from January 1, 1934, until June 1, 1934, and thereafter $250 a month during the minority of the children. It also provided for a reduction in the payments in case the wife remarried and for increased payments when the children were ready for college. The care, custody, and control of the children was awarded to the wife, subject to the right of reasonable visitation by the petitioner, and subject to the further order of the court. The former wife did not remarry during the taxable years. She lived during those years with both of*952 her children solely upon money furnished by the petitioner. He regularly paid the amounts provided for in the decree and, in fact, paid in excess of those amounts. He was on friendly terms with his former wife and children during all of the period here involved. He frequently visited them over week ends while they lived in Coronado and at such times stayed in the house with them. He also visited them for a week, on the same basis, while they were in North Carolina in 1935. The mother of the children consulted him during all of this period on many matters pertaining to the children, and he, in fact, exercised parental control over them in many matters, particularly those pertaining to their education. He never had any place of abode where the children could visit him during those years. He retired from the Navy in June 1937. *961 He now has a home in Miami, Florida, and plans have been made for the children to spend the summer of 1939 with him. The former wife filed no returns for 1934 or 1935 and has claimed no part of an exemption of $2,500 under section 25:b):1) of the Revenue Act of 1934. The petitioner claimed an exemption of $2,500 as head of a family on*953 his returns for 1934 and 1935. The Commissioner, in determining the deficiencies, disallowed those exemptions and allowed for each year only an exemption of $1,000. The petitioner was the head of a family during the years 1934 and 1935 within the meaning of that term as used in section 25:b):1) of the Revenue Act of 1934. OPINION. MURDOCK: The Revenue Act of 1934 in section 25:b):1) allows a single person an exemption of $1,000, but allows family defined in the statute, but it is defined in article 25-4 of Regulations 86 as one household one or more individuals who are closely connected with him by blood relationship, relationship by marriage, or by adoption, and whose right to exercise family control and provide for these dependent individuals is based upon some moral or legal obligation. one household his two minor children and his former wife. He had a right to provide for these dependent individuals which was based not only upon a moral but also upon a legal obligation. The only possible question that could be raised in regard to his claim to the exemption is whether he had a right to exercise family control. The decree of divorce gave the care, custody, and control*954 of the children to the wife, but the evidence shows that the divorce proceeding was a friendly one in which the parties agreed to let the wife have custody of the children as the only practical solution. The evidence further shows as a matter of fact that the petitioner has exercised family control and his wife has recognized his right to do so. The regulations only require that the taxpayer have a right to exercise family control and they do not require that he have the exclusive right. The petitioner comes within the definition of a head of a family as set forth in the regulations. He was entitled to a personal exemption of $2,500 as provided in section 25:b):1). Cf. ; . Decision will be entered under Rule 50.