Herbert v. Commissioner

Memorandum Findings of Fact and Opinion

DAWSON, Judge: Respondent determined a deficiency of $445 and an addition to tax of $87.08 under section 6651(a), Internal Revenue Code of 1954, in petitioner's*144 Federal income tax for the year 1965. At issue is weither the petitioner provided in 950 1965 more than half of the total support of her four children so that she is entitled to deductions for dependency credit exemptions for them under sections 151(e) and 152(a). The addition to tax will depend upon whether there is any deficiency for 1965.

Findings of Fact

Some of the facts are stipulated and are found accordingly.

Mary M. Herbert (herein called petitioner) was a legal resident of Marblehead, Massachusetts, at the time she filed her petition in this proceeding. She filed an untimely Federal income tax return for the year 1965 with the district director of internal revenue at Boston, Massachusetts.

Petitioner and her former husband, Walter Herbert, were divorced in 1960. They had four children, Jessica, Walter Jr., Arthur and Douglas who in 1965 were 15, 12, 11 and 8, respectively. The children were in their mother's custody in 1965.

During the year 1965 the total amount spent for the support of the four children was approximately $8,670, as follows:

*145 Pursuant to a court order, Walter Herbert paid the petitioner $3,900 ($975 for each child) in 1965 which was used for their support. Petitioner contributed the other amounts for their support.

Petitioner provided more than half of the total support for each of the four children in 1965.

Opinion

The issue is factual. To be entitled to the claimed exemptions, the petitioner must show that she provided more than half of each child's support for the year 1965. Section 152(a), Internal Revenue Code of 1954; section 1.152-1(a), Income Tax Regs.; Rose D. Seraydar, 50 T.C. 756 (1968); Aaron F. Vance, 36 T.C. 547 (1961). She has shown that her contributions to the support of each child exceeded half of the total support. We regard her testimony as credible and her figures as reasonable. Although the amounts estimated for food may seem a little high, we had occasion to observe the boys at trial. Their size attests to the hearty appetites underlying petitioner's food costs. The clothing costs for the boys also appear to be somewhat larger than could normally be expected, but they include school uniforms and rather expensive ice hockey clothes*146 and equipment. On this record we conclude that the petitioner has carried her burden of proof. Therefore,

Decision will be entered for the petitioner.