Raynor v. Commissioner

• Citation: 1983 TC Memo 593,46 TCM (CCH) 1509
• Decision Date: 26 September 1983
• Docket Number: Docket No. 9421-82.
• Parties: Brian K. Raynor and Camille A. McCann v. Commissioner.
• Court: United States Tax Court

46 TCM (CCH) 1509

1983 TC Memo 593

T.C. Memo. 1983-593.

Brian K. Raynor and Camille A. McCann v. Commissioner.

Docket No. 9421-82.

United States Tax Court.

Filed September 26, 1983.

Brian K. Raynor, pro se, Crofton, Md. Daniel J. Wiles, for the respondent.

Memorandum Findings of Fact and Opinion

TANNENWALD, Judge:

Respondent determined a deficiency of $540 in petitioners' 1978 Federal income tax. The sole issue for decision is whether petitioners are entitled, under section 152(e),¹ to claim Camille A. McCann's (Camille's) two minor children as dependents when a written separation agreement entitles Camille's ex-husband, John R. Harrison (John), to claim them.

This case was submitted fully stipulated pursuant to Rule 122. The stipulation of facts and exhibits attached thereto are incorporated herein by this reference.

Petitioners resided in Crofton, Maryland, when their petition was filed herein.

John and Camille were married in 1962 and had two children. On February 27, 1969, John and Camille entered into a written "Child Custody, Property Settlement and Separation Agreement." The agreement established child support payments and provided, inter alia, that "the parties hereto agree that subject to the regulations of the Internal Revenue Service that the Husband shall be entitled to claim the Children as dependents."² Because John and Camille were both residents of Maryland at the time, the agreement also provided that it was to be governed by Maryland law.

John and Camille received a final decree of divorce a vinculo matrimonii from a Maryland court on February 16, 1971. The decree gave Camille custody of the children, awarded child support and provided that "the provisions of the agreement dated February 27, 1969, between the parties as to property settlement, be approved by the Court and made part of this Decree."

During 1978, John paid in excess of $600 for child support for each of the two children in Camille's custody.

Section 152(e)(1) provides generally that if a child receives over half his support from his parents who are divorced or legally separated, then the parent with custody a greater portion of the year is entitled to claim that child as a dependent. Section 152(e)(2)(A), however, provides that the child of such parents — shall be treated as having received over half of his support during the calendar year from the parent not having custody if —

(A) (i) the deceree of divorce or of separate maintenance, or a written agreement between the parents applicable to the taxable year beginning in such calendar year, provides that the parent not having custody shall be entitled to any deduction allowable under section 151 for such child, and

(ii) such parent not having custody provides at least $600 for the support of such child during the calendar year * * *.

The parties agree that the second part of this test has been met. Therefore, the only question is whether the written agreement between John and Camille is applicable.

Petitioners contend that the agreement (1) is invalid because it was not incorporated in the divorce decree; (2) is invalid and/or should be ignored because John allegedly failed to comply with certain of its provisions; and (3) should be ignored because petitioners provided over half the children's support.³ Each of these arguments is meritless.

Under Maryland law, the provisions of a written separation agreement, being embodied in a contract, Pumphrey v. Pumphrey, 11 Md. App. 287, 273 A. 2d 637 (1971), are not invalid merely because they are not incorporated in the divorce decree. As the Maryland Court of Appeals noted in Shacter v. Shacter, 251 Md. 304, 247 A. 2d 268, 270 (1968), quoting 1 Nelson on Divorce, ch. 13, sec. 13.54 (2d ed. 1945):

A support or property agreement is not invalid nor unenforceable merely because it is not embodied in the divorce decree, if not in conflict with such decree. . . . A support or property agreement is not affected by the subsequent decree of divorce, if such settlement is neither incorporated in the decree, disapproved by the decree, nor superseded by provisions of the decree.

See also Eigenbrode v. Eigenbrode, 36 Md. App. 557, 373 A. 2d 1306, 1308 (1977). Even if we assume that the decree incorporated only that part of the agreement relating to the "property settlement," we are unable to perceive any conflict between that provision and the provisions of the agreement relating to the allocation of the dependency exemption. Cf. Meshulam v....