Robinson v. Commissioner

MEMORANDUM FINDINGS OF FACT AND OPINION

BRUCE, Judge: Respondent determined deficiencies in the Federal income tax of petitioners for the taxable year 1974 as follows:

At issue in these consolidated cases is the entitlement to claim dependency exemption deductions for the two minor children of Lynne T. Robinson and Charles D. Robinson, II.

FINDINGS OF FACT

Some of the facts have been stipulated, and they, together with the exhibits attached thereto, are incorporated*500 herein by this reference. Each petitioner resided in Louisville, Kentucky at all pertinent times.

Prior to their divorce on February 23, 1971, Lynne T. Robinson and Charles D. Robinson, II, were husband and wife. ¹ During 1974 the two minor children born of their marriage, Laura and Nancy, ages nine and five, respectively, resided with their mother. More than one-half of the support for these two dependent children was provided by their parents.

During the taxable year, Charles made payments to Lynne for the support of Laura and Nancy totalling $2,236, or $1,118 for each child.

Lynne was employed part-time during 1974 as a school teacher. She had earnings from her employment of $6,767, from which earnings a total of $1,364 in Federal, state, and local taxes was withheld. Lynne also had interest income of $62.

The parties stipulated that Lynne expended the following amounts in support of Laura and Nancy during 1974:

*501 Lynne, Laura, and Nancy resided in the home of Lynne's parents during 1974. Although her parents would have permitted all three of them to live there without charge, but because she was receiving child support payments and employed part-time, Lynne agreed to and did pay her parents $1,200 for rent and $180 for utilities for the children to live in their grandparents' house.

Lynne also purchased and prepared the food for herself and her children. She maintained a monthly budget in which the breakdown per day for each child's food was $2.50, or $912.50 for each child for the year.

Lynne kept receipts for clothing purchases for each of her daughters. During 1974 she paid $253 for Laura's clothing and $118 for Nancy's clothing.

In addition to the $9.75 stipulated to have been paid for Laura's education, Lynne made cash payments totalling $12.25 for Laura's school supplies and workbooks. In addition to the $46.28 stipulated to have been spent for recreation for Laura, Lynne spent $131 for swimming lessons, Girl Scout activities, trips, toys, and a birthday party. She also spent $40 on trips, toys, and a birthday party for Nancy. Haircuts for each child cost $36, and each child*502 made church contributions of $25 during the year.

In tabloid form, the amount of support provided for each child is as follows:

OPINION

At issue is whether Lynne or Charles is entitled to claim the dependency exemption deductions for their two children for 1974. Other pertinent facts having been stipulated, resolution of the issue depends upon which parent contributed more for the support of each child. The statutory provision involved is section 152(e)(2)(B), an exception to the general rule of section 152(e)(1), ² which operates to award the deductions to Charles unless Lynne can "clearly establish" that she provided more for the support of Laura and Nancy that did he. Lynne has produced evidence to support that conclusion; the dispositive question is the acceptability of that evidence. *503

*504 In Labay v. Commissioner,55 T.C. 6 (1970), affd. 450 F.2d 280 (5 Cir., 1971), we construed the statutory standard "clearly establish" as requiring the custodial parent to show by a clear preponderance of the evidence that he provided a greater amount of support than the noncustodial parent. A clear preponderance of the evidence requires "evidence that tends directly to establish the point to which it is adduced," i.e. something positive and explicit as opposed to evidence that is ambiguous or equivocal. Labay v. Commissioner,supra, at 13. We find that Lynne has met her burden.

Charles does not dispute that Lynne paid her parents $1,380 for rent and utilities but he submits that only one-third of that amount should be allocated for each child, the remaining one-third being attributable to Lynne's also residing with her parents. He has not adduced any evidence, however, to refute her testimony that the money was in fact paid solely on behalf of the children. The amounts paid are modest and Lynne's explanation of why any amount was paid is reasonable.

Contrary to Charles' characterization of Lynne's $912.50 per*505 child annual food allowance as being arbitrary, she testified with specificity how she arrived at that figure. Lynne maintained a monthly budget in which the breakdown for food for each child equalled $2.50 per day. Expenditures for food are of necessity an estimate, Labay v. Commissioner,supra, at 12, and on this record, we can find Lynne's estimate to be neither arbitrary nor unrealisitic.

With respect to clothing expenditures of $118 for Nancy and $253 for Laura, Lynne submitted two envelopes of loose receipts. She indicated that when clothing purchases were made, she would place the receipts in the appropriate envelope she maintained for each daughter. Lynne also explained that clothing costs for Laura were higher because Laura was older and attended school. We fail to appreciate Charles' assertion that allowance of these items "would have to be based on the merest speculation."

The other items of support were either stipulated or not specifically questioned by Charles. Each expenditure was identified and explained by Lynne. In our opinion she has clearly established that she provided more for the support of both Laura and Nancy than did Charles*506 during 1974.

Decision will be entered for the petitioner in Docket No. 445-77.

Decision will be entered for the respondent in Docket No. 659-77.