                  T.C. Summary Opinion 2009-192



                     UNITED STATES TAX COURT



               PAUL J. TWARAGOWSKI, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 19838-08S.             Filed December 15, 2009.



     Paul J. Twaragowski, pro se.

     John M. Janusz, for respondent.



     ARMEN, Special Trial Judge:    This case was heard pursuant to

the provisions of section 7463 of the Internal Revenue Code in

effect when the petition was filed.1   Pursuant to section

7463(b), the decision to be entered is not reviewable by any



     1
        Unless otherwise indicated, all subsequent section
references are to the Internal Revenue Code in effect for the
years in issue, and all Rule references are to the Tax Court
Rules of Practice and Procedure.
                                - 2 -

other court, and this opinion shall not be treated as precedent

for any other case.

     Respondent determined deficiencies in petitioner’s Federal

income taxes for 2003 and 2004 of $6,895 and $5,734,

respectively, and additions to tax under section 6651(a)(1) for

failure to timely file a tax return of $771 and $146.80,

respectively.    Respondent subsequently conceded the addition to

tax for failure to timely file for 2004.   After additional

concessions the issues remaining for decision are:

     (1) Whether petitioner is entitled to alimony deductions in

excess of the amounts allowed and conceded by respondent for 2003

and 2004.   We hold that he is not.

     (2) Whether petitioner is entitled to dependency exemption

deductions for three children for 2003 and 2004.   We hold that he

is not.

     (3) Whether petitioner is entitled to child tax credits for

2003 and 2004.   We hold that he is not.

     (4) Whether petitioner is entitled to head of household

filing status for 2003 and 2004.   We hold that he is not.

     (5) Whether petitioner is liable for the addition to tax for

failure to timely file for 2003.   We hold that he is.
                                - 3 -

                              Background

     None of the facts have been stipulated by the parties.

Petitioner resided in the State of New York when the petition was

filed.

     Petitioner and his ex-wife separated in 1996 and divorced in

2005.    During the marriage, petitioner and his ex-wife had four

children.

     Petitioner untimely filed his 2003 Federal income tax

return, which respondent received on June 6, 2005.   Petitioner

timely filed his 2004 Federal income tax return pursuant to an

extension.

     On the returns for 2003 and 2004 petitioner claimed

deductions for alimony of $20,160 and $19,928, respectively,

based (in part) on garnishments from petitioner’s paychecks.   In

a notice of deficiency respondent reduced the alimony deductions

for 2003 and 2004 to $8,595 and $8,128, respectively.   Respondent

later conceded that petitioner is entitled to alimony deductions

for 2003 and 2004 of $19,365 and $19,600, respectively.    At trial

petitioner did not provide documentation (or testimony)

establishing alimony deductions in excess of the amounts allowed

and conceded by respondent.

     Petitioner also claimed dependency exemption deductions for

three children and child tax credits for one child and elected

head of household filing status.    At no time during the years in
                                - 4 -

issue did petitioner’s children live with him, nor did he visit

them.   In the notice of deficiency respondent denied the

dependency exemption deductions and the child tax credits and

changed petitioner’s filing status to married filing separately.

                            Discussion

A.   Burden of Proof

      Generally, the Commissioner’s determinations are presumed

correct, and the taxpayer bears the burden of proving that those

determinations are erroneous.   Rule 142(a); Welch v. Helvering,

290 U.S. 111, 115 (1933).   Deductions and credits are a matter of

legislative grace, and the taxpayer bears the burden of proving

that he or she is entitled to any deduction or credit claimed.

Rule 142(a); Deputy v. du Pont, 308 U.S. 488, 493 (1940); New

Colonial Ice Co. v. Helvering, 292 U.S. 435, 440 (1934).      Under

section 7491(a)(1), the burden of proof may shift from the

taxpayer to the Commissioner if the taxpayer produces credible

evidence with respect to any factual issue relevant to

ascertaining the taxpayer’s liability.   Petitioner has not

alleged that section 7491 applies, nor did he introduce the

requisite evidence to invoke that section; therefore, the burden

of proof remains on petitioner.

      Section 7491(c) provides that the Commissioner bears the

burden of production with respect to an addition to tax.    To meet

this burden, the Commissioner must introduce evidence indicating
                                 - 5 -

that it is appropriate to impose the relevant addition to tax.

Higbee v. Commissioner, 116 T.C. 438, 446 (2001).       Once the

Commissioner meets this burden, the taxpayer bears the burden to

produce evidence regarding reasonable cause.       Id. at 446-447.

Respondent has met his burden.

B.   Alimony Deductions

      Section 71(a) provides the general rule that the payee

spouse must include alimony payments in gross income.       Section

215(a) provides the complementary general rule that the payor

spouse may deduct alimony payments in “an amount equal to the

alimony or separate maintenance payments paid during such

individual’s taxable year.”

      Respondent has allowed and conceded that petitioner is

entitled to deduct alimony payments for 2003 and 2004 of $19,365

and $19,600, respectively.    Petitioner has not provided one iota

of evidence establishing that he is entitled to alimony

deductions in any greater amounts.       Thus, petitioner is not

entitled to alimony deductions in excess of the amounts allowed

and conceded by respondent for the years in issue.

C.   Dependency Exemption Deductions

      In general, a taxpayer may claim a dependency exemption

deduction for a dependent, such as the taxpayer’s child, if the

taxpayer provides over one-half of the dependent’s support for
                                - 6 -

the year.    Secs. 151(a), (c)(1), 152(a).   An individual cannot be

a dependent of more than one taxpayer.    See sec. 151(d)(2).

      In the case of a child of divorced parents, if a child

receives over one-half of his support during the year from his

parents and is in the custody of one or both parents for more

than one-half of the year, then the child shall be treated as

receiving over one-half of his support during the year from the

parent having custody for a greater portion of the year.2    Sec.

152(e)(1).    That parent is referred to as the “custodial parent”.

Id.

      Although petitioner claimed dependency exemption deductions

for three children, during the years in issue the children did

not live with him, nor did he visit them.    Rather, the children’s

mother was the custodial parent.    Petitioner testified that he

was required by court order to maintain health coverage for the

children and that in order to do so, he was required by his

employer to claim the children as dependents on his tax return.

Despite this assertion, petitioner, as the noncustodial parent,




      2
        The exceptions to the general rule of sec. 152(e)(1) do
not apply to the facts of this case. For example, sec. 152(e)(2)
allows the noncustodial parent to claim the dependency exemption
deduction for a child if the custodial parent signs a written
declaration, or Form 8332, Release of Claim to Exemption for
Child of Divorced or Separated Parents, releasing his or her
claim to the deduction and the noncustodial parent attaches the
declaration or Form 8332 to his or her tax return.
                               - 7 -

is not entitled to dependency exemption deductions for the three

children for the years in issue.

D.   Child Tax Credit

      Section 24(a) allows taxpayers a credit against tax imposed

for each qualifying child.   Section 24(c)(1)(A) provides that a

“qualifying child” for purposes of section 24 is any individual

if “the taxpayer is allowed a deduction under section 151 with

respect to such individual for the taxable year”.   Because

petitioner is not entitled to dependency exemption deductions for

either year under section 151, he is not entitled to a child tax

credit under section 24.

E.   Head of Household Filing Status

      As relevant herein, section 2(b)(1)(A)(i) provides that to

qualify for head of household filing status, a taxpayer must

maintain as his home a household which constitutes the principal

place of abode of an unmarried child for at least 6 months during

the year.   Petitioner testified that he filed his returns as a

head of household at the behest of his tax preparer.   However,

petitioner admitted that in hindsight the head of household

filing status was not well founded.3   For the years in issue, the

children did not live with petitioner but rather with their


      3
        Petitioner stated: “To be quite frank, I have considered
the IRS statements against [head of household filing status] and
basically feel that I really don’t have much standing to maintain
that position of head of household status.”
                                 - 8 -

mother.    As such, petitioner’s home was not the principal place

of abode of an unmarried child, and, therefore, he is not

entitled to head of household filing status.

F.   Addition to Tax for Failure To File

      Section 6651(a)(1) imposes an addition to tax for failure to

file a return by its due date.    The addition equals 5 percent for

each month or fraction thereof that the return is late, not to

exceed 25 percent.   Sec. 6651(a)(1).

      In the absence of an extension, the last date for petitioner

to have timely filed his Federal income tax return for 2003 was

Thursday, April 15, 2004.   Sec. 6072(a).   Petitioner’s 2003

Federal income tax return was not received, however, until June

6, 2005.

      “A failure to file a tax return on the date prescribed leads

to a mandatory penalty unless the taxpayer shows that such

failure was due to reasonable cause and not due to willful

neglect.”    McMahan v. Commissioner, 114 F.3d 366, 368 (2d Cir.

1997), affg. T.C. Memo. 1995-547.    A showing of reasonable cause

requires a taxpayer to show that he exercised “ordinary business

care and prudence” but was nevertheless unable to file the return

within the prescribed time.    United States v. Boyle, 469 U.S.

241, 246 (1985); sec. 301.6651-1(c)(1), Proced. & Admin. Regs.

      Petitioner testified that the 2003 return was untimely

because there was the possibility that he and his then wife would
                                 - 9 -

file a joint return, even though they were separated and had been

since 1996.    When it became clear to petitioner that a joint

return would not be possible, he filed a return, albeit untimely.

     Although a joint return may have been petitioner’s

preference, after 7 years of separation this is not a sufficient

ground for delay.   Thus, on the basis of the record before us,

petitioner has not demonstrated that his failure to timely file

his 2003 Federal income tax return was due to reasonable cause

and not willful neglect.    See sec. 301.6651-1(c), Proced. &

Admin. Regs.    Therefore, petitioner is liable for the addition to

tax under section 6651(a)(1) for 2003.

                             Conclusion

     We have considered all of the arguments made by petitioner,

and, to the extent that we have not specifically addressed them,

we conclude that they are moot, irrelevant, or without merit.

     To reflect the foregoing,


                                              Decision will be entered

                                         under Rule 155.
