Giannantonio v. Comm'r , 2009 Tax Ct. Summary LEXIS 47 ( 2009 )

T.C. Summary Opinion 2009-42
UNITED STATES TAX COURT
FRANK MICHAEL GIANNANTONIO, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 26425-06S. Filed March 26, 2009.
Frank Michael Giannantonio, pro se.
John M. Janusz and Christopher Zera (student),
for respondent.
RUWE, Judge: This case was heard pursuant to the provisions
of section 74631 of the Internal Revenue Code in effect when the
petition was filed. Pursuant to section 7463(b), the decision to
1
Unless otherwise indicated, all section references are to
the Internal Revenue Code in effect for the year at issue, and
all Rule references are to the Tax Court Rules of Practice and
Procedure.
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be entered is not reviewable by any other court, and this opinion
shall not be treated as precedent for any other case.
Respondent determined a $2,250 deficiency in petitioner’s
2004 Federal income tax. The issues for decision are: (1)
Whether petitioner is entitled to a dependency exemption
deduction for his daughter, HB;2 (2) whether petitioner is
entitled to the child tax credit; and (3) whether petitioner is
entitled to head of household filing status.
Background
Most of the facts have been stipulated and are so found.
The stipulation of facts and the attached exhibits are
incorporated herein by this reference. Petitioner resided in New
York when the petition was filed.
Respondent sent a notice of deficiency to petitioner setting
forth a deficiency of $2,250 in income tax for 2004. In the
notice of deficiency respondent changed petitioner’s filing
status to single, disallowed petitioner’s dependency exemption
deduction for HB, and disallowed petitioner’s claimed child tax
credit.
HB is petitioner’s daughter, and Jennifer Boettcher (Ms.
Boettcher) is HB’s mother. Petitioner and Ms. Boettcher have
2
The Court refers to minor children by their initials. See
Rule 27(a)(3).
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never been married, and they lived apart at all times during the
last 6 months of calendar year 2004.
HB was the only dependent petitioner claimed on his 2004
Federal income tax return. Ms. Boettcher, however, also claimed
HB as a dependent on her 2004 Federal income tax return. Ms.
Boettcher had custody of HB for the greater portion of 2004.
Petitioner did not attach to his 2004 Federal income tax return a
written declaration signed by Ms. Boettcher indicating that she
would not claim HB as a dependent. Additionally, Ms. Boettcher
testified at trial that she did not sign a written declaration
stating that she would not claim HB as a dependent for 2004, and
petitioner has not produced such a document nor alleged that it
exists.
Both petitioner and Ms. Boettcher claim to have each
provided more than half of HB’s support during 2004. Petitioner
approximated his expenses for caring for HB at $13,342.45 during
2004.
Discussion
As a general rule, the Commissioner’s determinations set
forth in a notice of deficiency are presumed correct, and the
taxpayer bears the burden of proving that these determinations
are in error. Rule 142(a); Welch v. Helvering, 290 U.S. 111, 115
(1933). Section 6001 requires taxpayers to maintain records,
statements, returns, and to comply with such rules and
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regulations as prescribed by the Secretary. Individual taxpayers
are to keep permanent books and records sufficient to verify
income, deductions, or other matters required to be shown on any
informational or tax return. Sec. 1.6001-1(a), Income Tax Regs.
Pursuant to section 7491(a), the burden of proof as to
factual issues may shift to the Commissioner where the taxpayer
introduces credible evidence and complies with substantiation
requirements, maintains records, and cooperates fully with
reasonable requests for witnesses, documents, and other
information. Petitioner has not met the requirements of section
7491(a) because he has neither met the substantiation
requirements nor introduced credible evidence to support the
deductions and credits at issue.
Dependency Exemption Deduction for 20043
Section 151(c) generally allows a taxpayer to deduct an
annual exemption amount for each dependent of the taxpayer. In
this regard, section 152(a) defines a “dependent” to include a
daughter over half of whose support was received from the
taxpayer. See sec. 152(a)(1). If a child receives over half of
his support during the calendar year from parents who live apart
at all times during the last 6 months of the calendar year and
3
We note that the Working Families Tax Relief Act of 2004,
Pub. L. 108-311, 118 Stat. 1166, amended, inter alia, secs. 151,
152, 24(c), and 2(b)(1)(A)(i) effective for tax years beginning
after Dec. 31, 2004. Thus, we apply the law as was applicable to
tax year 2004; i.e., as it existed prior to such amendment.
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such child is in the custody of one or both of the parents for
more than one-half of the calendar year, then the “child shall be
treated, for purposes of subsection(a), as receiving over half of
his support during the calendar year from the parent having
custody for a greater portion of the calendar year (hereinafter
in this subsection referred to as the “custodial parent”).” Sec.
152(e)(1).
If the requirements of section 152(e)(1) are met, the child
is treated as having received over half of his support from the
custodial parent, and the custodial parent is entitled to the
dependency exemption deduction. The noncustodial parent can gain
entitlement to the deduction if the custodial parent executes a
valid written declaration under section 152(e)(2) releasing the
claim to the deduction. King v. Commissioner, 121 T.C. 245, 249
(2003).
Petitioner does not contend that he is the custodial parent.
In fact, in his petition, petitioner states: “I never believed
that the custodial parent [Ms. Boettcher] would claim our
daughter.” Petitioner’s contention is that the special support
test in section 152(e) does not apply to parents who have never
married, such as himself. For support, petitioner relies on an
Office of Chief Counsel litigation guideline memorandum, which
reflected the position that the special support test did not
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apply to parents who have never married each other. Chief
Counsel Advice 1999-49-033 (Dec. 10, 1999).
This Court previously addressed this argument in King v.
Commissioner, supra. In King this Court acknowledged that the
Commissioner has at times taken inconsistent positions on this
matter, and the Court set out to resolve the issue by turning to
the statutory language of section 152(e)(1). Id. at 249. In
reference to section 152(e), we stated:
The statute specifically provides that the test applies
not only to divorced and certain separated parents, but
to parents “who live apart at all times during the last
6 months of the calendar year”. There is no
requirement in the statute that parents have married
each other before the special support test can apply.
Section 152(e)(1) applies to any parents, regardless of
marital status, as long as they lived apart at all
times for at least the last 6 months of the calendar
year. [Id. at 250.]
Although we found the language of section 152(e)(1) to be
unambiguous, we endeavored to explain further that the
legislative history of section 152(e) does not provide support
for deviating from the plain meaning of the statute. Id. at 250-
251. Indeed, after review of the legislative history of section
152(e), we further stated:
Neither the House bill nor the conference report states
that the amendment to section 152(e) was intended to
apply only to married parents. Indeed, applying
section 152(e)(1)(A)(iii) to both married parents and
parents who have never married each other is consistent
with the stated purpose of resolving dependency
disputes without the Commissioner’s involvement in
cases where parents both claim the dependency exemption
deductions. * * * [Id. at 251.]
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Moreover, we have applied section 152(e)(1) to parents who had
never married each other in cases both before and after our
holding in King. See Barrett v. Commissioner, T.C. Memo. 2008-
284; Smith v. Commissioner, T.C. Memo. 2006-163; Hughes v.
Commissioner, T.C. Memo. 2000-143; Brignac v. Commissioner, T.C.
Memo. 1999-387. We decline petitioner’s invitation to overrule
this precedent, which we find is indistinguishable from the
present case. Therefore, the special support test in section
152(e)(1) applies, and Ms. Boettcher is treated as having
provided over half of HB’s support for 2004. She will be
entitled to the dependency exemption deduction unless, pursuant
to section 152(e)(2), she released her claim to the exemption
deduction for 2004.
Ms. Boettcher testified that she did not sign a written
declaration agreeing not to claim HB as her dependent.
Furthermore, petitioner has established neither that such a
declaration was ever made nor that such a declaration was
attached to either his 2004 or any prior Federal income tax
return. See sec. 152(e)(2).
Because petitioner is not treated as the custodial parent
under section 152(e)(1) and has not established that Ms.
Boettcher executed a written declaration releasing her claim to
the dependency exemption deduction under section 152(e)(2), it
follows that HB is not treated as having received over half of
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her support from petitioner. Thus, HB does not qualify as
petitioner’s dependent under section 152(a). The failure to
establish HB as his dependent under section 152 precludes
petitioner from claiming entitlement to the dependency exemption
deduction under section 151(c). Accordingly, we sustain
respondent’s determination to disallow petitioner’s claimed
dependency exemption deduction for HB.
Child Tax Credit
Section 24(a) authorizes a tax credit with respect to each
qualifying child of the taxpayer. For this purpose the term
“qualifying child” means any individual if, inter alia, the
taxpayer is allowed a deduction under section 151 with respect to
such individual for the taxable year. Sec. 24(c)(1).
We have already held that petitioner is not allowed a
deduction with respect to HB as a dependent under section 151.
Therefore, it follows that HB is not a qualifying child and
petitioner does not qualify for the child tax credit.
Accordingly, we sustain respondent’s determination to disallow
petitioner’s claimed child tax credit for 2004.
Head of Household Filing Status
Section 1(b) imposes a special income tax rate on an
individual filing as head of household. As applied in this
context, section 2(b) defines a “head of a household” as an
unmarried individual who maintains as his home a household which
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constitutes for more than one-half of the taxable year the
principal place of abode of, inter alios, a daughter of the
taxpayer.
HB’s principal place of abode was not petitioner’s residence
for more than one-half of the taxable year. Thus, it follows
that petitioner is not entitled to head of household filing
status. Accordingly, respondent’s adjustment to petitioner’s
filing status is sustained.
We have considered all of the parties’ contentions, and, to
the extent not addressed herein, we conclude those contentions
are either without merit or unnecessary to the resolution of the
issues in this case.
To reflect the foregoing,
Decision will be entered
for respondent.