Powell v. Commissioner

MEMORANDUM OPINION

GALLOWAY, Special Trial Judge: In these consolidated cases, respondent determined the following deficiencies in petitioners' Federal income taxes:

*83 The only issue for decision is which petitioner is entitled to an exemption deduction for three daughters resulting from the former marriage of A.B. Powell and Opal M. Powell. ¹

Some of the facts are stipulated and are so found. To facilitate disposition of this case, our findings of fact and opinion will be combined.

A. B. and Sue Powell were residents of Blanch, North Carolina, at the time their petition was filed. Opal was a resident of Yanceyville, North Carolina, when she filed her petition with this Court.

Both of these cases were originally filed as small tax cases pursuant to section 7463 of the Code. During the trial, petitioner A. B. Powell requested that his case be removed from the small tax case category in accordance with Rule 172(c). ² After petitioner Opal M. Powell agreed to the removal of the small tax case designation as to her case, petitioner A. B. Powell's motion was granted and an order was entered removing both cases from the small tax category. Respondent thereupon filed answers to both petitions. *84

A. B. and Opal had been married for a number of years and had three daughters from their marriage. They were divorced in 1981, ³ at which time Paula, Angela and Jennifer were ages 14, 12 and 3, respectively. These children resided with Opal during 1981. A. B. and Sue Powell have stipulated with respondent that they paid the following amounts for the support of the children during the taxable year:

Respondent and Opal have stipulated that she provided the following support for her children during 1981:

*85 A. B. and his wife Sue testified concerning additional cash sums paid to support his daughters in 1981 relating to purchase of boots and cheerleading transportation costs (Paula only), cash allowances, meals during weekend visits and other items. These support items result in the following revised support provided by A. B.:

In the case of divorced parents, section 152(e)(2)(B) allows the noncustodial parent an exemption when he provides $1,000 or more support for each child in a year if the parent having custody "does not clearly establish" that she provided more support than did the noncustodial*86 parent. , affd. per curiam . We have previously found that the respective parties have paid the amounts indicated above for the support of the children during 1981. Therefore, Opal has "clearly established" her right to the three dependency exemption deductions. A. B. has failed to prove that he paid more for the support of his daughters than the $2,100.82, $2,046.31 and $2,059.31 provided by Opal for Paula, Angela, and Jennifer, respectively.

We note that some of A. B.'s support expenditures for food are high. However, even if we though otherwise, it is clear that Opal has shown by a clear preponderance of the evidence that she furnished more than half of the support for each child during the taxable year. See ; . ⁵

Decision will be entered*87 for the respondent in docket No. 9932-84.

Decision will be entered for the petitioner in docket No. 35027-84.