McKay v. Commissioner

Raymond M. McKay, Petitioner, v. Commissioner of Internal Revenue, Respondent

McKay v. Commissioner

Docket No. 81968

United States Tax Court

34 T.C. 1080 ; 1960 U.S. Tax Ct. LEXIS 69 ;

September 22, 1960 , Filed

*69 Decision will be entered for the respondent .

Held , that expenses incurred for singing and dramatic lessons supplied petitioner's minor daughter in 1957 constitute part of her support. Held, further , that petitioner is not entitled to a dependency exemption for his daughter in 1957 because he did not prove that he paid more than half of her support.

John L. Carey, Esq ., for the petitioner.

George H. Becker, Esq ., for the respondent.

Turner, Judge .

TURNER

*1080 The respondent determined a deficiency in income tax against the petitioner for 1957 in the amount of $ 173.27.

The issue for decision is whether the petitioner furnished more than half of the support of his minor child so as to entitle him to a dependency exemption under section 152(a) of the Internal Revenue *70 Code of 1954 .

FINDINGS OF FACT.

The petitioner was a resident of Mishawaka, Indiana, during 1957, the taxable year involved. He filed his individual income tax return for the taxable year with the district director of internal revenue for Indiana.

The petitioner and his former wife, Claire, had one child, Sharron Lynn, who was born on April 10, 1944. Claire obtained a decree of divorce from petitioner on September 22, 1955, in Circuit Court No. 1 of Allen County, Indiana, under which she was awarded custody of the child. At all times subsequent thereto she has had custody of Sharron Lynn, and has resided in Fort Wayne, Indiana. For the year 1957, both the petitioner and Claire claimed a dependency exemption on their returns with respect to Sharron Lynn.

Under the terms of the divorce decree the petitioner was ordered to pay the clerk of the county Circuit Court $ 17.50 per week for the support of his daughter. In 1957, he made checks payable to the clerk in the total amount of $ 910, but the amount actually received by Claire in that year was only $ 857.50. The clerk was required by the court to wait until the petitioner's personal check had cleared before making payment to *71 Claire.

Other support provided Sharron Lynn by the petitioner during the year was as follows: Sweaters $ 15.96

Birthday gift 10.00

Coat 10.00

Cash 40.00

Entertainment 40.00

Total 115.96

*1081 The petitioner provided Sharron Lynn with support in the amount of $ 857.50 plus $ 115.96, or $ 973.46, during 1957.

Claire owned and maintained her own home, in which she and her daughter lived by themselves. The house had been constructed at the petitioner's direction in 1955, at a cost of $ 17,900. He had lived there with Claire and Sharron Lynn until September of that year, when the divorce was granted. After the divorce, Claire purchased the house from the court commissioners for $ 18,500. The house, which sits on a wooded lot 80 feet by 240 feet, has 3 bedrooms, a 2-compartment bath, a living room with fireplace and dining room area, a full basement with fireplace, a 2-car garage, a small front porch, a sundeck, and a patio in the back. There is a play area near the fireplace in the basement where Sharron Lynn and her friends gathered during the winter months for dancing, marshmallow roasts, and the like. The extra smaller bedroom was used as a musicroom for *72 Sharron Lynn to practice playing the piano and singing and for her and her friends to rehearse their musical and theatrical activities.

The following expenses were incurred by Claire during 1957 in maintaining the home: Insurance $ 108.40

Real estate taxes 245.80

Electricity 76.56

Heating and hot water 231.00

Telephone 64.00

Water softener 25.00

Total 750.76

Claire paid $ 578.69 as mortgage interest on the house during 1957.

The fair rental value of the lodging furnished Sharron Lynn in 1957 was $ 600.

During 1954 and 1955 the petitioner rented at a cost of $ 5.50 per week a room in a boardinghouse in Fort Wayne where he had use of the living room to watch television and use of the kitchen for making snacks or coffee.

In addition to the items normally furnished a young girl of her age, Sharron Lynn was also given piano, voice, dramatic, and dancing lessons. Her singing talent was such that during 1957 she sang in two broadcasts over Radio Station WKJG in Fort Wayne. She sang regularly in the choir at church and was selected as the child soloist at Easter and Christmas.

The following cash expenditures were made for the benefit of Sharron Lynn by Claire and the *73 petitioner during the taxable year: *1082 Food $ 400.00

Clothing 247.11

Doctor and dental services 68.00

X-rays 42.20

Drugs and medicine 27.50

Nursing services 90.00

Hospitalization insurance 25.00

Boarding-out costs 25.00

School book rental, voice and piano manuals, hymnals, catechisms 48.00

School lunches 57.00

Allowance of $ 2 per week 104.00

Piano and voice instructions 163.50

Dramatic lessons and costumes and fees 80.00

Transportation to and from school and rehearsals 66.60

Summer and music camp for 2 weeks 42.00

Parochial school tuition 80.00

Schoolbus fee 25.00

Bus fee for school trip to Chicago 11.00

Confirmation and graduation gift 32.50

Cost of keeping dog 52.00

Beauty parlor expenses 25.00

Dancing lessons at YMCA 16.00

Additional items of clothing, entertainment, and other gifts

supplied by petitioner 115.96

Total 1,843.37

Sharron Lynn had no income of her own in 1957.

The support furnished Sharron Lynn during 1957 consisted of the cash expenditures for her benefit totaling $ 1,843.37 plus $ 600, the value of her lodging, or an aggregate sum of $ 2,443.37. Of this amount the petitioner supplied $ 973.46, which is less than *74 half.

In his determination of the deficiency herein the respondent disallowed the dependency exemption claimed by the petitioner for Sharron Lynn for 1957.

OPINION.

The only question presented is the factual one as to whether the petitioner furnished more than half of the cost of the support of his daughter, Sharron Lynn, in 1957 so as to entitle him to the deduction of a dependency exemption under section 152(a) of the Internal Revenue Code of 1954 . 1

The petitioner's contentions on brief are not entirely clear with respect to the items constituting his daughter's support, but he appears to take the position that the amounts listed below in the first *1083 column were contributed *75 by him for her support and that the amounts in the second column comprised her total support in the taxable year involved: Petitioner's contributions Total support

Payments to clerk of Circuit Fair market value of lodging $ 286.00

Court $ 910.00 Hospital insurance 11.25

Cash of $ 2 per visit 40.00 Medical expense 75.00

Birthday gift 10.00 Church 26.00

Sweaters 15.96 Food 350.00

Clothing 300.00

School expense 188.00

Camp 42.00

Sweaters, cash, and birthday

gift from petitioner 65.96

975.96 1,344.21

The evidence, as we view it, indicates that during the taxable year the petitioner provided Sharron Lynn with support in the amount of $ 973.46 and that her total support was $ 2,443.37. We have so found.

The difference of $ 2.50 between the $ 975.96 which the petitioner claims to have contributed and the $ 973.46 which we have found he actually supplied results from our inclusion of $ 50 of items covered by petitioner in his testimony but omitted in his tabulation on brief ($ 40 entertainment and a $ 10 coat), and our exclusion of $ 52.50 of the claimed support payments. Although the petitioner drew checks payable to the court clerk *76 in the total amount of $ 910, Claire in fact received only $ 857.50 in 1957, because the clerk was required by the court to wait until the petitioner's personal check had cleared before any transmittal of the amount thereof to Claire. Under section 152 (a) , the year in which the support was received is controlling in determining whether over half of the dependent's support was received from the petitioner since a "dependent" is defined in that section as a person "over half of whose support, for the calendar year in which the taxable year of the taxpayer begins, was received from the taxpayer." See Rev. Rul. 58-404 , 1958- 2 C.B. 56 . The petitioner has produced no evidence to show that at any time the clerk failed to make the funds available to Claire promptly after a check had cleared. On the facts, we accordingly conclude and hold that the support provided by the petitioner in 1957 by payments through the clerk of the court was in the amount of $ 857.50.

The petitioner made some reference on brief to his traveling expenses of $ 360 from Mishawaka to Fort Wayne and return which he incurred on his weekend visits with Sharron Lynn. These expenditures *77 were for his personal benefit rather than for her support, and, as such, have not been included as elements of her support.

*1084 Although we are in substantial agreement with the petitioner as to the amount he spent for Sharron Lynn's support, it appears to us that he has understated the total support provided her. We have found that the fair rental value of her lodging was $ 600 rather than $ 286 as he contends. See William C. Haynes , 23 T.C. 1046 , and Emil Blarek , 23 T.C. 1037 . Considering that the house in which Claire and Sharron Lynn lived was in a desirable location, was furnished, and was comfortable and spacious, we believe that the rental value of the house was at least $ 140 per month, as Claire testified, and such being the case, that $ 50 per month was fair and reasonable for Sharron Lynn's occupancy, and we have so found. Petitioner does not dispute as an item of support furnished the inclusion of a proper amount as representing the lodging supplied Sharron Lynn, but based on a rental of $ 5.50 per week which he had paid for a room in a boardinghouse in Fort Wayne during 1954 and 1955, he argues that *78 the fair value of the lodging furnished was no more than $ 286. There he was allowed to watch television in the living room and to use the kitchen for making snacks or coffee. In contrast, Sharron Lynn had use of the entire house for entertaining her friends. The house had a musicroom in which she practiced playing the piano and singing, and a patio in the back for her recreational use. Thus, the facilities afforded Sharron Lynn in her own home seem far more valuable to us than those used by the petitioner in the boardinghouse, and under the statute the amount of the support actually furnished is the amount to be taken into account.

The petitioner makes the further argument that the cost of the singing, dancing, and dramatic lessons are not elements of Sharron Lynn's support, his theory being that such instruction is not a necessity and that only necessities are to be taken into consideration in determining what constitutes support furnished for a dependent. As a basis for his contention, he cites Haag v. Haag , Ind. , 163 N.E. 2d 243 , wherein it was held that a father could not be compelled to pay the cost of his son's college education *79 because it was not a necessity. Despite the Indiana law on the subject of compulsory support payments to children, which incidentally is by no means the uniform view, 2 we have found nothing in either the precise wording of section 152(a) or its legislative history to convince us that the term "support" as used therein should be limited to payments which a court could require parents to make as part of their common law or statutory duty to provide for their children.

*80 *1085 An argument quite similar to that made by the petitioner was recently rejected by this Court in Bernard C. Rivers , 33 T.C. 935 , where it was stated:

Petitioner's position is that public schools were available to the children wherein no tuition was required and that therefore the tuition paid by Mary was not for the necessities of life and therefore not to be considered in determining the total cost of their support. We have had occasion in Martha J. Blyth , 21 T.C. 275 , to consider this point. We there found that tuition paid for the attendance of a child at a private school was expended in the support of the child. On the strength of that case we hold here that the tuition expenses incurred and paid by Mary with respect to the attendance of the children at parochial schools are also to be considered as having been spent for their support.

The extent of Sharron Lynn's singing talent is indicated by the fact that during 1957 she sang in two broadcasts over Radio Station WKJG in Fort Wayne, and at the church she attended was selected as soloist at Easter and Christmas. Consequently, it appears to us that preparatory *81 training for a possible singing career, which may well be as important as a college education to Sharron Lynn, would certainly be encompassed within the scope of support under section 152(a) .

Accordingly, since the petitioner did not furnish more than half of Sharron Lynn's support, we sustain the respondent's determination that the petitioner is not entitled to a dependency exemption for Sharron Lynn in 1957.

Decision will be entered for the respondent .

Footnotes

1. SEC. 152 . DEPENDENT DEFINED.

(a) General Definition. -- For purposes of this subtitle, the term "dependent" means any of the following individuals over half of whose support, for the calendar year in which the taxable year of the taxpayer begins, was received from the taxpayer * * *: (1) A son or daughter of the taxpayer, * * * ↩

2. The generally accepted modern view that a parent may be required to pay for his child's college education is exemplified by Titus v. Titus , 311 Mich. 434 , 18 N.W. 2d 883 ; Rawley v. Rawley , 94 Cal. App. 2d 562 , 210 P. 2d 891 ; and Atchley v. Atchley , 29 Tenn. App. 124 , 194 S.W. 2d 252 . Contra: Hachet v. Hachet , 117 Ind. App. 294 , 71 N.E. 2d 927 ; Commonwealth v. Wingert , 173 Pa. Super. 613 , 98 A. 2d 203 ; Straver v. Straver , 59 A. 2d 39 ↩ (N.J. Eq. 1948) .