Blyth v. Comm'r of Internal Revenue, Docket No. 40636.

• Decision Date: 23 November 1953
• Docket Number: Docket No. 40636.
• Citation: 21 T.C. 275
• Parties: MARTHA J. BLYTH, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT.
• Court: U.S. Tax Court

21 T.C. 275

MARTHA J. BLYTH, PETITIONER,

v.COMMISSIONER OF INTERNAL REVENUE, RESPONDENT.

Docket No. 40636.

Tax Court of the United States.

Promulgated November 23, 1953.

Martha J. Blyth, pro se.

John J. Burke, Esq., for the respondent.

1. Dependency credits claimed by petitioner for the taxable years denied for failure of proof to show that she contributed more than one-half of her minor son's support.

2. Under the decree of divorce obtained by petitioner, her former husband was required to pay $100 per month for her support and maintenance and $50 per month for the support and maintenance of their minor son. Beginning in September of 1948, the monthly payments made by him to petitioner amounted to only $100 and they continued at that rate throughout 1948. Held, that $50 of the $100 so received by petitioner from her former husband in September 1948 and in each month thereafter through 1949 must be regarded as having been paid for the support and maintenance of the son, and only $50 constituted alimony includible in the income of petitioner within the meaning of section 22(k) of the Internal Revenue Code.

The respondent has determined deficiencies in income tax against the petitioner for the years 1948 and 1949 of $143.84 and $233.69, respectively. The questions are whether petitioner, during the taxable years, contributed over half of the support for her minor son so as to be entitled to dependency credits for the said years, under section 25(b) of the Internal Revenue Code, and whether, during the taxable years, she received alimony payments of $1,200 per year which were includible in her income, under section 22(k) of the Code, or in those years received lesser amounts as such alimony.

FINDINGS OF FACT.

Petitioner, an individual, is a resident of Los Angeles, California. She filed her income tax returns for the years 1948 and 1949 with the collector of internal revenue for the sixth district of California.

On July 5, 1945, she received a final decree of divorce from C. Clark Blyth in the Superior Court of the State of California for Alameda County. In the order it was provided that the husband should pay for her support and maintenance $100 a month, and for the support and maintenance of Robert Clark Blyth, the minor son of the parties, the sum of $50, the said payments to begin on July 1, 1945, and to continue thereafter on the first day of each month, until further order of the court. Robert Clark Blyth was born December 17, 1931. Prior to the divorce, the parties had executed an agreement, wherein it was provided that legal custody and control of their son should be vested in the wife, including the right to take the son out of the State of California, but at all times and places subject to the right of the husband to see and to have the child with him at reasonable times and places and under circumstances consonant with the welfare of the child and convenience of the wife.

The premises where petitioner and Robert resided consisted of a 3-bedroom apartment, for which petitioner paid $140 a month rent. At the beginning of 1948, Robert was attending Los Angeles High School. In September of 1948, he was placed in Harvard Military School by petitioner's former husband or his mother. Harvard Military School is a boarding school, located in the vicinity of Los Angeles. It was not inexpensive. This action was taken without procuring petitioner's consent but she took no steps to prevent it. She was very doubtful that Robert would stay at the school. All of the costs for Robert's attendance at the school were paid by petitioner's former husband or his mother. During his attendance to the school Robert would return to his mother's apartment at rather frequent intervals. On occasions, he would be there for a short time only; at other times he would spend the night or a weekend.

In 1948, and prior to Robert's entry into Harvard Military School, petitioner expended approximately $100 per month for food for the two of them. She bought Robert's clothing, which included full suits, slacks, shirts, shoes, and the like. Due to the large size of his feet, the cost of his shoes was above average. The wear and tear on his clothing and shoes was substantial— at least what might be expected of a boy his age. When he was attending high school petitioner gave him $5 a week as spending money, which was also to cover his lunches.

Robert was continued in Harvard Military School from September 1948 through the school year, which ended the following June. He again entered school in the fall of 1949, and continued during the remainder of the year. During all of that period, his costs at the school were borne by his father or his grandmother. His habit of returning home at intervals for a short period or for overnight or the weekend continued in 1949, as it had been in 1948.

During the summer vacation periods he spent an undetermined amount of time with his father.

After Robert was entered in Harvard Military School, in September of 1948, his father reduced his monthly payments to petitioner from $150 to $100 per month. He obtained no modification of the final order of the superior court, but took the position that since his son's tuition and board at the Harvard Military School were being supplied at no cost to petitioner, he should not be expected to pay the $50 per month which had been provided in the court order for the maintenance and support of the son.

In or about February of 1951, petitioner petitioned the court to order payment of the $50 per month which had been suspended by her former husband in September of 1948. The matter was settled by agreement, wherein the former husband agreed to pay the delinquent amount of $1,500. Payment of that amount was to be spread over a period of time.

In her income tax returns for 1948 and 1949, petitioner claimed...