Sheppard v. Commissioner

*942 Respondent determined deficiencies in petitioner's income tax for the taxable years 1953 and 1954 in the amounts of $ 541 and $ 200, respectively. The statutory notice *124 contained the following explanation:

The exemption claimed by you for your wife, Dorothy Sheppard, has been disallowed because the evidence indicates that she did not qualify as your wife during the year 1953 in accordance with the provisions of Section 25(b) of the Internal Revenue Code of 1939, therefore, you are not entitled to the exemption for wife.

The following exemptions claimed by you have been disallowed because you have not submitted sufficient evidence to prove that these individuals qualified as your dependents during the year 1953 in accordance with the provisions of Section 25(b) of the Internal Revenue Code of 1939:

Robert W. Harris -- No relation

Bonnie Good -- No relation

Beth Ann Good -- No relation

* * * *

The exemption claimed by you for Dorothy Sheppard has been disallowed because the evidence indicates that she did not qualify as your wife during the year 1954, therefore, in accordance with the provisions of Section 151(b) of the Internal Revenue Code of 1954 you are not entitled to an exemption for wife.

The exemptions claimed by you for Robert Harris and Bonnie Good have been disallowed because you have not submitted sufficient evidence to prove that these individuals *125 qualified as your dependents during the year 1954 in accordance with the provisions of Section 151(e) of the Internal Revenue Code of 1954.

The issue of the dependency of one alleged child, Beth Ann Good, during the taxable year 1953 is conceded by petitioner and the questions now presented are: (1) Whether the alleged wife and two alleged stepchildren qualify as dependents in either year as wife and *943 stepchildren of petitioner, or (2) whether the alleged wife and two alleged stepchildren qualify as unrelated dependents under sections 151 and 152, I.R.C. 1954.

FINDINGS OF FACT.

A stipulation of facts has been filed and is incorporated herein by reference.

Petitioner is an individual who resided in the State of New Jersey in the years 1952, 1953, and 1954. He now resides at Shiloh, New Jersey. His income tax returns for the years 1953 and 1954 were filed with the director for the first district of New Jersey, Camden, New Jersey.

Dorothy Good, herein called alleged wife, was granted judgment nisi in an action of divorce against Fred Good on January 23, 1952, by a court of the State of New Jersey.

Petitioner entered into a marriage ceremony on March 7, 1952, with Dorothy Good in Elkton, Maryland. *126 At the time that petitioner entered into the marriage ceremony with the alleged wife, petitioner did not know that a final judgment of divorce had not been entered in alleged wife's suit against Fred Good. At the time of the marriage ceremony the alleged wife had three children: Robert W. Harris, Bonnie Good, and Beth Ann Good, herein called alleged stepchildren.

On April 24, 1952, final judgment of divorce on the marriage of Dorothy Good to Fred Good was entered by the court which had granted judgment nisi heretofore mentioned.

Petitioner did not contribute more than one-half of the support of one of the alleged stepchildren, Beth Ann Good, during the year 1953. Petitioner did contribute more than one-half of the support of the alleged wife and the other alleged stepchildren during the year 1953.

Petitioner filed an individual income tax return for the year 1953, claiming as exemptions the alleged wife (named on the return as Dorothy Sheppard) and all three of the alleged stepchildren.

On or about July 8, 1954, petitioner learned that at the time he and alleged wife were married, her final judgment of divorce had not been entered.

Petitioner did not adopt any of the alleged stepchildren.

Petitioner *127 did not contribute more than one-half of the support of the alleged wife or of any of the alleged stepchildren during the year 1954.

Petitioner filed an individual income tax return for the year 1954, claiming as exemptions the alleged wife and two of the alleged stepchildren.

*944 On April 9, 1955, final judgment of nullity of the marriage of petitioner and the alleged wife was granted by a court of the State of New Jersey. The petitioner was the plaintiff in the action of nullity. Judgment was granted on the ground that the alleged wife was lawfully married at the time petitioner and alleged wife entered into the marriage ceremony heretofore mentioned.

OPINION.

Two questions are alternatively presented by the facts in this case: (1) Whether petitioner is entitled to exemptions in 1953 and 1954 for an alleged wife and two alleged stepchildren as a spouse and stepchildren, and (2) whether petitioner is entitled to exemptions in 1954 for an alleged wife and alleged stepchildren as unrelated dependents. As to the first question, the applicable statutory provisions are contained in section 25, I.R.C. 1939, and sections 151 and 152, I.R.C. 1954; ^1*129 so far as pertinent here, the foregoing provisions *128 of the 1954 Code are, in effect, the same as those contained in the 1939 Code. The provisions applicable to the second question are found in section 152(a)(9) of the 1954 Code. ²

We shall now take up question (1). Whether the alleged wife and alleged stepchildren of the petitioner were the wife and stepchildren of petitioner depends upon applicable State law. Albert Gersten, 28 T.C. 756, affd. (C.A. 9, 1959) 267 F. 2d 195; Marriner S. Eccles, 19 T.C. 1049, affirmed per curiam 208 F. 2d 796.

The alleged wife was granted a judgment nisi by New Jersey court *945 in an action of divorce against Fred Good prior to the marriage ceremony in Maryland between petitioner and the alleged wife. *130 Subsequent to the Maryland marriage ceremony, a final judgment was entered. New Jersey courts hold that a marriage is not terminated by a judgment nisi, but rather only by a final judgment. Streader v. Streader, 85 A. 2d 532. A marriage contracted by one of the parties to a divorce action subsequent to the entry of judgment nisi and prior to final judgment is null and void in New Jersey despite continued cohabitation subsequent to removal of the impediment. Dacunzo v. Edgye, 111 A. 2d 88, affd. 117 A. 2d 508. Common law marriages are not valid in New Jersey. Dacunzo v. Edgye, supra; R.S. 37: 1-10, N.J.S.A. A resident of New Jersey who temporarily leaves the State and, while absent, contracts a marriage which is prohibited by the laws of New Jersey, and then returns to that State to reside with his alleged wife, has contracted an invalid marriage. Bucca v. State, 128 A. 2d 506.

By the law of Maryland, a marriage contracted while a prior marriage subsists is void without a judicial decree of nullity. Townsend v. Morgan, 63 A. 2d 743. A marriage contracted in Maryland prior to the time judgment of divorce in another jurisdiction becomes absolute is null and void. Oliver v. Oliver, 185 F. 2d 429. *131 Bigamy is a crime in Maryland (Ann. Code, 1957, art. 27, sec. 16), and a conviction thereof automatically renders the marriage null and void (Ann. Code, 1957, art. 62, sec. 16). Common law marriages are not valid in Maryland, and cohabitation after the death or divorce of the former spouse does not give validity to the second marriage. Townsend v. Morgan, supra.

Whether the State law applicable to the determination of the validity of the marriage between petitioner and the alleged wife is the law of New Jersey, the place of residence of petitioner, or the law of Maryland, the place of performance of the marriage ceremony, no valid marital status was created between petitioner and his alleged wife. Since petitioner was never validly married to the alleged wife, her children were never validly his stepchildren.

At trial petitioner, who appeared pro se, urged that his marital status should be recognized for Federal income tax purposes, although not recognized by the laws of the State of creation, if any, of the marital status, or by the laws of the State of his domicile. Situations exist in which, under both the Internal Revenue Codes of 1939 and 1954, the marital status, or husband-wife *132 relationship, is treated without regard to the applicable State law. ³ These situations, however, deal with the treatment of the marital status after divorce or separation under the applicable State law and are statutorily created *946 exceptions to the general rule as to the law applicable to the determination of the marital status. They do not concern the question we have here.

Petitioner's claim, therefore, for the allowance of exemptions for the alleged wife and two alleged stepchildren as his wife and stepchildren under the 1939 and 1954 Codes must be disallowed. Respondent's determination in this respect is sustained.

Whether the petitioner is entitled to claim exemptions for the alleged wife and two alleged stepchildren as unrelated dependents, as allowed in certain cases by section 151(e)(1) of the 1954 Code and as defined by section 152(a)(9), 1954 Code, is petitioner's alternative contention. The respondent's determination of a deficiency is prima facie correct and the burden is on petitioner to prove otherwise. Petitioner was required to prove, under *133 section 151(e)(1), that none of the claimed dependents had an income of more than $ 600 for the year 1954. Petitioner submitted no evidence on the point, nor did he call any witnesses. He, alone, testified and his testimony does not negative the possibility that the alleged stepchildren could have received gross income of more than $ 600. His testimony as to the income of the alleged wife in 1954 was that she earned "around $ 600, I think." He admitted that as to that figure he was "just guessing" and was "not saying positively." Such testimony does not support petitioner's burden. It was also incumbent upon petitioner to show that he contributed more than one-half the support of the alleged wife and the alleged stepchildren as unrelated dependents during 1954. Again, petitioner submitted no evidence on the point and called no witnesses. He alone testified. When asked by the Court as to whether he claimed that he contributed more than half the support, petitioner replied, "I will say I did. But I could not prove it." As to how long in 1954 the petitioner supported the alleged wife and stepchildren, his testimony was that he supported them "fully for at least three or four months, *134 but I wouldn't say any more," "until around June," "until June," "most of June," "the first part of June," "very nearly" 6 months, but "I won't say six months." By such testimony petitioner did not prove that he had contributed more than one-half the support of the claimed dependents for the entire year.

Petitioner, therefore, is not entitled to the exemptions for the alleged wife and stepchildren as unrelated dependents during 1954 under sections 151(e) and 152(a)(9) of the 1954 Code. Cf. Robert Woodrow Trowbridge, 30 T.C. 879, affirmed per curiam 268 F. 2d 208 (C.A. 9, 1959).

Respondent, in his brief states, "the Court's decision should be entered under Rule 50 whether the decision is for the petitioner or respondent, in whole or in part."

Decision will be entered under Rule 50.