Kotlowski v. Comm'r of Internal Revenue, Docket No. 13951.
| Decision Date | 25 March 1948 |
| Docket Number | Docket No. 13951. |
| Citation | 10 T.C. 533 |
| Parties | OLLIE J. KOTLOWSKI, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT. |
| Court | U.S. Tax Court |
OPINION TEXT STARTS HERE
Petitioner and his wife were divorced. Care and custody of their eight minor children were awarded to the wife. Petitioner was ordered by the court to pay stated amounts for the support and maintenance of the eight children. During the taxable years the amounts contributed by him voluntarily and under orders of the court were less than one-half the total amount expended for the support and maintenance of the eight children, and the amount contributed by the wife was more than one-half. Held, under the facts and circumstances, petitioner is not entitled to any credit for dependent. Louis J. Meldman, Esq., for the petitioner.
John D, Kiley, Esq., for the respondent.
This proceeding involves deficiencies in income tax in the amounts of $478 and $568 for the taxable years 1944 and 1945, respectively. The case was submitted on a stipulation of facts in accordance with the provisions of Rule 30(a) of the Court's rules of practice.
The stipulation is as follows:
1. Petitioner is an individual residing in Milwaukee, Milwaukee County, Wisconsin, and was married to Beatrice Kotlowski (referred to hereafter as ‘Mrs. Kotlowski‘) on the 10th day of June, 1925.
2. Petitioner and Mrs. Kotlowski have eight minor children whose christian names and dates of birth are as follows:
+---------------------------------------------------------+
¦Christian Name¦Date of Birth¦Christian Name¦Date of Birth¦
+--------------+-------------+--------------+-------------¦
¦Jean ¦Jan. 9, 1928 ¦Robert ¦April 1, 1936¦
+--------------+-------------+--------------+-------------¦
¦Daniel ¦Jan. 27, 1930¦Thomas ¦June 25, 1937¦
+--------------+-------------+--------------+-------------¦
¦Gerald ¦Feb. 27, 1932¦Susan ¦Oct. 15, 1938¦
+--------------+-------------+--------------+-------------¦
¦Kenneth ¦Feb. 9, 1934 ¦Anthony ¦Aug. 12, 1942¦
+---------------------------------------------------------+
3. On May 26, 1944, Mrs. Kotlowski was granted a divorce from the petitioner by the Circuit Court, Milwaukee County, Wisconsin. By said decree, the care and custody of said eight children were awarded to Mrs. Kotlowski. The Court further ordered, adjudged and decreed that the petitioner pay to Mrs. Kotlowski the sum of $75.00 per month for the support and maintenance of said eight minor children.
4. Prior to the granting of said divorce the petitioner pursuant to the terms of a temporary court order effective February 1, 1944, pending a hearing on the divorce action, paid to Mrs. Kotlowski amounts aggregating $300.00 for the support and maintenance of the eight minor children for the months of February, March, April and May 1944.
5. The petitioner pursuant to the terms of the divorce decree paid Mrs. Kotlowski in 1944 the sum of $525.00 for the support and maintenance of said eight minor children in addition to said support money paid prior to the final decree; the total sum paid by petitioner pursuant to court orders in 1944 for the support and maintenance of said eight minor children was $825.00.
6. On October 25, 1945 an amended court order was entered which provided that the petitioner pay to Mrs. Kotlowski the sum of $90.00 per month, beginning on September 11, 1945, for the support and maintenance of said eight minor children; the total sum paid by petitioner pursuant to court orders in 1945 for the support and maintenance of said eight minor children was $952.50.
7. Mrs. Kotlowski was employed during the taxable years, receiving salary income of $2,057.58 for the year 1944 and $1,941.00 for the year 1945. In addition to her salary, Mrs. Kotlowski received $192.00 for each of the years 1944 and 1945 earned by her son Gerald, from his newspaper route, and $180.00 for each of these years from the renting of a portion of a dwelling house she owned. Mrs. Kotlowski and her eight minor children lived in this dwelling house during the years 1944 and 1945. That part of the dwelling house occupied by Mrs. Kotlowski and her eight children, if rented to other persons, would have a rental value of not less than $40.00 per month during the years 1944 and 1945.
8. During the years 1944 and 1945 Mrs. Kotlowski had custody of the eight minor children who lived with her and over whom the alone exercised family control. She selected the schools for the children, managed the household and incurred and paid all expenses incident to the common household and rearing of the children. Mrs. Kotlowski and the petitioner have lived separate and apart from each other in different dwelling houses since she filed her divorce action against the petitioner on February 1, 1944.
9. The total amount expended for the support and maintenance of the eight minor children by petitioner and Mrs. Kotlowski for the year 1944 was $3,244.00 of which total amount petitioner paid $1,344.00; said sum of $1,344.00 includes the payments aggregating $825.00 made by petitioner pursuant to the above mentioned court orders; the remaining sum of $1,900.00 was paid by Mrs. Kotlowski.
10. The total amount expended for the support and maintenance of the eight minor children by petitioner and Mrs. Kotlowski for the year 1945 was $3,182.00, of which total amount petitioner paid $1,458.50; said sum of $1,458.50 includes the payments aggregating $952.50 made by petitioner pursuant to the above mentioned court orders and the remaining sum of $1,723.50 was paid by Mrs. Kotlowski.
11. The total amounts as stated in paragraphs 9 and 10 above which were paid by the petitioner for the support and maintenance of the eight minor children were not enough to meet the cost of their livelihood and maintenance, and Mrs. Kotlowski supplied the remaining sums mentioned in paragraphs 9 and 10 from her earnings.
12. On February 9, 1945 and February 18, 1946, petitioner filed with the collector of Internal Revenue for the District of Wisconsin, his Federal income tax returns for the respective calendar years 1944 and 1945. In each of said returns the petitioner claimed a dependency credit for each of said eight children.
13. In his notices of deficiency for the years 1944 and 1945 dated March 11, 1947, (copies attached to the petition) the respondent disallowed the dependency credits claimed with the following explanation:
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