Kinnane v. Commissioner

MEMORANDUM FINDINGS OF FACT AND OPINION

SACKS, Commissioner: Respondent determined a deficiency in petitioner's Federal income tax for the taxable year 1967 in the amount of $568.61. The sole issue for decision is whether petitioner is entitled to dependency exemptions for his four minor children.

FINDINGS OF FACT

Some of the facts have been stipulated by the parties. Their stipulation, together with an attached exhibit, is incorporated herein by this reference. 2

Joseph D. Kinnane, hereinafter referred*35 to as petitioner, resided in Warehouse Point, Connecticut at the time of the filing of the petition herein. His individual Federal income tax return for 1967, made on the cash basis and for the calendar year period, was filed with the district director of internal revenue at Hartford, Connecticut.

Petitioner and his former wife, Helen, were divorced during 1965. Custody of their four children, Cathy, Lynda, Patricia and Christopher was awarded to Helen, and petitioner was ordered to pay $10 per week for the support of each child.

During the taxable year 1967 petitioner paid the sum of $520 for support of each of his children. In addition, he expended $158 each on Cathy and Lynda for a trip and Christmas and birthday presents, and $75 each on Patricia and Christopher for the same items. Thus, the total amount contributed by petitioner for support of each of his children during 1967 was $678 for Cathy, $678 for Lydna, $595 for Patricia, and $595 for Christopher.

Throughout the taxable year 1967 the four children resided with Helen and her second husband, Joseph Barry. The entire amount expended during the year for support of Cathy was at least $1,404; for Lynda at least*36 $1,404; for 3 Patricia at least $1,264; and for Christopher at least $1,264. ¹ Of this amount petitioner contributed no more than the sums above specified, and the balance was contributed by Helen and Joseph Barry.

On his individual Federal income tax return for the taxable year 1967 petitioner claimed Cathy, Lynda, Patricia and Christopher Kinnane as dependency exemptions. Respondent disallowed all four claimed exemptions on the grounds that petitioner had failed to establish that he provided the chief support for the children during the taxable year.

OPINION

Since petitioner did contribute more than $1,200 for the support of the four children dependency exemption credits for whom are controverted herein, the burden of proof was upon respondent to show by a clear preponderance of the evidence that Helen, who had custody of all four children during the year, provided more in support for them than did petitioner. Section 152(e) (2) (B) of the Code. , aff'd *37 (C.A. 5, 1971). Joseph Barry testified at the trial 4 and provided, in a large measure, documentary evidence to support the figures which he stated he and Helen had expended in support for the children. Even if we were to discount to a degree those figures which were not corroborated by documents, it is clear that Helen and Joseph Barry provided at least $726 in support for each Cathy and Lynda, and $669 in support for each Patricia and Christopher. In contrast, giving petitioner's oral testimony full effect, we are unable to find that he provided during 1967 more than $678 each for support of Cathy and Lynda and $595 each for support of Patricia and Christopher. We therefore find that respondent has carried his burden of proof, and consequently sustain his determination.

Reviewed and adopted as the report of the Small Tax Case Division.

Decision will be entered for the respondent.