Sowder v. Commissioner

Memorandum Findings of Fact and Opinion

DRENNEN, Judge: Respondent determined a deficiency of $129.80 in petitioner's Federal income tax for 1967.

Two issues are presented for our decision: (1) Whether petitioner is entitled to a dependency exemption in 1967 for his*224 minor son, and (2) whether section 152(e) of the Internal Revenue Code of 1954, ¹ is unconstitutional.

Findings of Fact

Some of the facts have been stipulated and are so found.

Petitioner, a single individual, resided in Cincinnati, Ohio, at the time he filed his petition herein. He filed his individual Federal income tax return for the taxable year 1967 with the district director of internal revenue, Cincinnati, Ohio.

On July 15, 1961, petitioner married Sandra A. Siegman. On April 1, 1962, a son, William Fred Estes Sowder (hereinafter referred to as William), was born of that marriage.

Petitioner and Sandra Sowder were divorced under a decree of divorce entered on September 18, 1963, in the court of Common Pleas, Domestic Relations Division, Hamilton County, Ohio. Under the decree of divorce Sandra Sowder was awarded custody of the child, with petitioner having reasonable visitation privileges, and petitioner was ordered to pay to the court $15 a week for the maintenance and support of the child.

On October 23, 1964, the*225 original decree of divorce was modified whereby petitioner was ordered to pay to the court $17 a week for the maintenance and support of William. During the year 1967 petitioner paid the sum of $816 for the support of William. Petitioner has not seen his former wife or son since the end of 1965.

Petitioner does not have a college education and in 1967 worked as a clerk and 452 lived modestly. Neither Sandra Sowder nor her parents have a college education; nor were her parents affluent people. Sandra Sowder did not have any working experience prior to her divorce from petitioner.

In his 1967 Federal income tax return petitioner claimed a dependency exemption for his minor son. Respondent disallowed the dependency exemption in the statutory notice of deficiency on the basis that petitioner had not satisfied the requirements of section 152(e). ²

*226 Opinion

The basic issue for our decision is whether petitioner is entitled to a dependency exemption for his minor son for 1967.

Section 151(e) allows a taxpayer an exemption of $600 for each of his dependents (as defined in section 152). Section 152(a) defines the term "dependent" to include specified individuals (including a son) "over half of whose support, for the calendar year in which the taxable year of the taxpayer begins, was received from the taxpayer." In 1967, Congress, realizing the difficulties encountered as a result of the burden of proof in dependency exemption cases where the parents of the child were divorced or legally separated, enacted Pub. L. No. 90-78 (Aug. 31, 1967), which added section 152(e) to the Internal Revenue Code of 1954.

Section 152(e), limited to taxable years beginning after December 31, 1966, provides specific rules in the case of divorced or separated parents for determining which parent is entitled to the dependency exemption allowed by section 151(e) with respect to the children born of that marriage. If section 152(e) is applicable ³ (as it is here), it provides as a general rule that the parent who has custody of the child for the*227 greater portion of the year is entitled to the deduction. It further provides two exceptions whereby the noncustodial parent is entitled to the deduction. The first exceptio, contained in section 152(e)(2)(A), allows the deduction to the noncustodial parent if he (she) provided $600 for the support of the child during the calendar year and the decree of divorce or of separate maintenance or an agreement between the parents provides that the noncustodial parent will get the deduction. The other exception, contained in section 152(e)(2)(B), allows the deduction to the noncustodial parent if he (she) provided $1,200 or more for the support of the child (or for all of the children, if there is more than one) during the calendar year and the custodial parent does not "clearly establish" that she (he) provided more for the support of the child than the noncustodial parent.

*228 Petitioner did not have custody of his son in 1967 and does not qualify for the deduction under the general rule of section 152(e)(1). It is also clear that 453 petitioner does not qualify for the deduction under either of the two exceptions provided in section 152(e)(2). There is no evidence that the decree of divorce or a written agreement between petitioner and Sandra provided that petitioner should be entitled to the deduction; and petitioner provided less than $1,200 for the support of the child in 1967.

Petitioner contends that, as applied to him, section 152(e) is unconstitutional since the presumption in favor of the custodial parent is arbitrary, unreasonable, and discriminatory. He further contends that the two exceptions which would allow him (noncustodial parent) the deduction are also arbitrary, unreasonable, and discriminatory and that the requirement of section 152(e)(2)(A) for a written agreement giving the deduction to him is excessively retrospective as applied to him.

It is unnecessary for us to reach this question, ⁴ however, since a taxpayer alleging the unconstitutionality of a statute must be able to show "not only that the statute is invalid but that*229 he has sustained or is immediately in danger of sustaining some direct injury as the result of its enforcement, and not merely that he suffers in some indefinite way in common with people generally." Massachusetts v. Mellon, 262 U.S. 447, 488 (1923). Here, petitioner has not shown that he sustained or will sustain a direct injury as a result of the enforcement of section 152(e). While it is clear that petitioner has not satisfied either of the two exceptions under section 152(e) so that he would be entitled to the dependency exemption for his minor son in 1967 under that section, it is equally clear that petitioner has not shown that he would be entitled to the dependency exemption irrespective of section 152(e) since he has completely failed to introduce any evidence from which we could reasonably conclude that he provided over half of the total support furnished to his son in 1967 as required by section 152(a). In this regard petitioner's reliance upon Commissioner v. Mendel, 351 F. 2d 580 (1965), reversing 41 T.C. 32 (1957), Theodore Milgroom, 31 T.C. 1256 (1959), and E. R. Cobb, Sr., 28 T.C. 595 (1957), for the proposition*230 that he provided over half of the support of his son, is misplaced. In each of those cases the taxpayer did not show the exact or precise amount of total support contributed but did produce sufficient evidence from which it could be reasonably determined that the amount of support furnished by the taxpayer was more than half of the total support furnished the child. Here petitioner has produced no evidence whatsoever from which we could even surmise what the total support of the child was in 1967 or that the amount of support furnished by him was over half of the total support furnished his minor son in 1967.

*231 As we have already stated above, petitioner has failed to show that he meets the support test necessary to qualify his son as a dependent under either section 152(e) or section 152(a). Consequently, we have no choice but to sustain respondent's determination.

Decision will be entered for the respondent.