Vuole v. Commissioner

Memorandum Findings of Fact and Opinion

TRAIN, Judge: Respondent determined a deficiency in petitioner's income tax for the year 1961 in the amount of $120.

The sole issue is whether petitioner was entitled to claim his daughter as a dependent in 1961.

Findings of Fact

Petitioner is an individual who resided in 1961 at 86-30 114th Street, Richmond Hill, New York. He filed his return for that year with the district director of internal revenue, Jamaica, New York.

Petitioner is a sewing machine operator in the textile business. He has two children, a son Frank and a daughter Rae, who were 18 and 16, respectively, in 1961. These are children by a former wife, Mary, now remarried to Fred Passafume.

In 1961, petitioner paid a total of $780 for the support of his two children to Mary Passafume, his former wife. This payment was made pursuant to the order of the Domestic Relations Court of the City of New York, 283 Adams Street, Brooklyn, New York.

Petitioner's daughter Rae lived throughout the year 1961 in the Passafume household and attended school. His son, Frank, lived*279 in the same home and also attended school until mid-1961 when he graduated and entered the Navy. His daughter earned no income during 1961. His son earned no income prior to entering the Navy. The Passafume's home was a three-room apartment for which the rent was $95 a month. There was another child in the home, Robert, aged 11, who was a son of Fred Passafume.

The gross income of Fred and Mary Passafume in 1961 was $4,504.55. The gross income of petitioner in that year was $1,928.29.

The total support of Rae in 1961 cost $900; the support of Frank cost $450 (excluding the period after he entered the Navy). After June 30, 1961, Frank was self-supporting and all of the payments made by petitioner were applied to Rae's support. Of the $780 paid by petitioner in 1961, at least $520 was used for Rae's support.

On their joint return for 1961, Fred and Mary Passafume claimed Frank, Rae, and Robert as dependents. On his return for 1961, petitioner claimed Rae as a dependent.

Petitioner furnished more than half the support of his daughter Rae in 1961.

Opinion

Mary Passafume testified at length as to the alleged expenses borne by her husband, Fred, and herself for the support of*280 Rae and Frank. She would have us believe that none of petitioner's payments were used for their support but rather were given to them as "spending money." Having observed Mary on the witness stand, we do not believe her testimony in this connection. Moreover, this testimony, when measured against the evidence of the total available income of the Passafume's (and their other expenses) is simply not credible.

We believe and have so found that petitioner furnished more than half of Rae's support in 1961. He is entitled to an exemption on that account.

Decision will be entered for the petitioner.