Link v. Commissioner

MEMORANDUM FINDINGS OF FACT AND OPINION

TANNENWALD, Chief Judge: For the taxable year 1977, respondent determined deficiencies, in these consolidated cases, of $ 462.00 in the income tax of Victoria Link and $ 307.00 in the income tax of Jack Kozak, together with an addition to tax of $ 15.35 under section 6653(a) ¹ in respect of Jack Kozak. The sole issue involved herein is the right of each of the petitioners to certain dependency exemptions.

FINDINGS OF FACT

Petitioners, Victoria Link (Link) and Jack Kozak (Kozak), resided in Elmhurst, N.Y., at the time they filed their petitions herein.

Kozak is Link's father. Kozak, his wife, and their sons, Philip Kozak and Michael Kozak, and Link, her husband, and their son, John Link, lived in the same household during 1977.

Kozak filed a joint Federal income tax return with his wife for the taxable year 1977, on which they reported $ 8,554.96 of income, representing earnings by Mrs. Kozak. On that return, *122 Michael and Philip Kozak and John Link were claimed as dependents.

Link filed a joint Federal income tax return with her husband ² for the taxable year 1977, on which she reported $ 8,680 of income. On that return, she claimed her father, her brother Philip, and her son, John. During 1977, Philip was about 29 years old, was not a student, and had in excess of $ 750 in gross income.

In his deficiency notice to Link, respondent disallowed the exemptions claimed for Link's father, brother, and son. In his deficiency notice to Kozak, respondent disallowed the exemption claimed for his son Philip and his grandson John.

OPINION

When this case was called for trial, the paties agreed that Link was entitled to the dependency exemption for her son John and that Kozak was not so entitled.

Link's claim for a dependency exemption for her father is clearly not allowable, since he filed a joint return with his wife for the taxable year at issue. Section 151(e)(2).

Since Philip Kozak had gross income in excess of $ 750, was over the age of 19, and was not*123 a student, neither Link nor Kozak may claim him as a dependent. Section 151(e)(1).

As to the addition to the tax of Kozak under section 6653(a), the burden of proof is on him to show that it should not be imposed. Rule 142(a), Tax Court Rules of Practice and Procedure. He has failed to do so.

Decision will be entered in docket No. 9124-80 that there is a deficiency in the income tax of petitioner in the amount of $ 309.

Decision will be entered in docket No. 9125-80 for the respondent.