2004 Tax Ct. Summary LEXIS 123">*123 PURSUANT TO INTERNAL REVENUE CODE SECTION 7463(b), THIS OPINION MAY NOT BE TREATED AS PRECEDENT FOR ANY OTHER CASE.
COUVILLION, Special Trial Judge: This case was heard pursuant to
Respondent determined a deficiency in petitioner's Federal income tax for the year 2001 in the amount of $ 2,667 and an addition to tax under section 6651(a)(1) in the amount of $ 145.50 for the failure to file the 2001 income tax return timely. At trial, respondent conceded the section 6651(a)(1) adjustment.
The issues for decision are: (1) Whether petitioner is entitled to a dependency exemption deduction under2004 Tax Ct. Summary LEXIS 123">*124
Some of the facts were stipulated. Those facts, with the exhibits annexed thereto, are so found and are made part hereof. Petitioner's legal residence at the time the petition was filed was Las Vegas, Nevada.
Petitioner married Bertha Alicia Tello (Mrs. Gallardo) on July 12, 1989. They had three children of their marriage: Jorge A. Gallardo, born on February 4, 1990, Stacy Gallardo, born on April 6, 1991, and Richard Gallardo, born on July 28, 1996. At trial, petitioner was employed as a cage cashier at one of the casinos in Las Vegas, Nevada. Mrs. Gallardo was also employed at a casino during the year at issue.
On July 20, 2001, petitioner and his wife separated. She moved out of the marital premises along with the three2004 Tax Ct. Summary LEXIS 123">*125 children. Petitioner thereafter filed a Complaint For Divorce in the District Court, Family Division, Clark County, Nevada, against his spouse. 2 A Decree of Divorce was rendered on February 21, 2002.
In the divorce decree, the "primary physical custody" of the three children was awarded to Mrs. Gallardo. Visitation privileges for petitioner were provided. The divorce decree further provided for payment of child support by petitioner in the amount of $ 560 per month and an additional amount of $ 50 per month for child care. The decree further ordered petitioner to pay $ 3,920 for "back child support", payable at the rate of $ 50 per month. It appears from the record that the "back child support" represented petitioner's obligation for2004 Tax Ct. Summary LEXIS 123">*126 child support from the date the parties separated in July 2001 (7 months at $ 560 per month) to the date of their divorce. Petitioner admitted at trial that he paid no support to his wife and children from the date Mrs. Gallardo moved out of their matrimonial domicile in July 2001 until he was ordered to pay support in the divorce decree. The divorce decree further required petitioner to maintain medical and dental insurance for his children. No evidence was presented at trial as to whether petitioner fulfilled this portion of the decree.
Petitioner filed a Federal income tax return for 2001 claiming head-of-household filing status and one dependency exemption deduction for his youngest child, Richard Gallardo. He claimed an earned income credit of $ 1,040, with his son Richard Gallardo as the qualifying child, a child care credit of $ 600, and a rate reduction credit under section 6428 in the amount of $ 465.
In the notice of deficiency, respondent disallowed petitioner's head-of-household filing status and determined he was married, filing separately. Respondent also disallowed the claimed dependency exemption deduction for Richard Gallardo, disallowed the claimed earned income2004 Tax Ct. Summary LEXIS 123">*127 and child care credits, and made a computational adjustment reducing the section 6428 rate reduction credit from $ 465 to $ 300. In his petition to this Court, petitioner challenges these adjustments. 3
With respect to the first issue, whether petitioner is entitled to a dependency exemption deduction,
The Court is not satisfied from the evidence that petitioner provided more than half of the support for his son during the year at issue. Petitioner presented no evidence to show the total support that was provided to the child during 2001 and the amount he provided to establish that such amount met the one-half threshold required under
With respect to the second issue,
Petitioner's sole argument on this issue is that he maintained his home as a household that constituted, for more than one-half of taxable year 2001 (until July 20, 2001), the principal place of abode for his son. While that assertion is correct, petitioner was married, and, additionally, under
With respect to the third issue,
The final issue is petitioner's claim to what is generally referred to as the child care credit.
Reviewed and adopted as the report of the Small Tax Case Division.
Decision will be entered for respondent for the deficiency and for petitioner for the addition to tax.
1. Unless otherwise indicated, section references hereafter are to the Internal Revenue Code in effect for the year at issue.↩
2. The evidence conflicts as to the date the complaint was filed. The acknowledgment or affidavit accompanying the complaint is dated Oct. 19, 2001; however, the complaint was filed with the court on Jan. 10, 2002. The different dates are not material to the issues in the case.↩
3. Sec. 7491, in some instances, places the burden of proof on respondent. However, under sec. 7491(a)(2)(A) and (B), for the burden to shift, the taxpayer must comply with the substantiation and record-keeping requirements of the Internal Revenue Code. Petitioner presented no documentary evidence to substantiate his claim for the dependency exemption; therefore, the burden of proof did not shift to respondent.↩