                         T.C. Memo. 1996-387



                       UNITED STATES TAX COURT



                WILSON BAKER, JR., Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 6227-95.                       Filed August 20, 1996.



     Wilson Baker, Jr., pro se.

     Deborah A. Harrington, for respondent.



               MEMORANDUM FINDINGS OF FACT AND OPINION

     COHEN, Chief Judge:    Respondent determined deficiencies in

petitioner's Federal income taxes and penalties as follows:

                                                 Penalty
        Year            Deficiency             Sec. 6662(a)

        1991             $4,718                  $  944
        1992              5,026                   1,005
        1993              6,253                   1,251
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Unless otherwise indicated, all 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.   The issues for decision are whether petitioner is

entitled to deductions for alimony or dependency exemptions for

his three children during each of the years in issue, whether he

is entitled to claim head of household status for 1993, and

whether he is liable for the penalties determined by respondent.

                         FINDINGS OF FACT

     Some of the facts have been stipulated, and the stipulated

facts are incorporated in our findings by this reference.

Petitioner resided in Lanham, Maryland, at the time that he filed

his petition.

     Petitioner was previously married to Cynthia J. Baker.

During the marriage, petitioner and his then wife had three

children--Darrell Wilson and Jerrell Wilson, twins born

November 13, 1971, and Tonya Elizabeth Wilson, born August 11,

1978.   Petitioner and his former wife were divorced in 1983.

     The Final Judgment of Dissolution of Marriage, filed

March 2, 1983, provided in part as follows:

          2. The primary physical residence of the three
     minor children of the parties * * * shall be with the
     Wife. The secondary physical residence of the children
     shall be with the Husband.

          3. Both parents shall share parental
     responsibility with respect to the children, and shall
     confer on all major decisions affecting the welfare of
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     the children, making all such major decisions jointly,
     including decisions concerning rearing, education,
     medical and dental care, religious training, and any
     other aspect of the children's lives affecting their
     welfare and best interests.

              *    *      *    *       *   *     *

          5. As and for combined and unallocated alimony
     and support payments, the Husband shall pay to the Wife
     the sum of $1,189.90 per month, by military allotment
     beginning the month of March, 1983 and continuing
     through February, 1985. Thereafter the Husband's
     payments to the Wife shall be reduced to $600.00 per
     month as and for child support and shall be paid by
     military allotment, beginning March, 1985 and
     continuing each and every month thereafter until said
     children [illegible] their majority, become self-
     supporting, marry or die, whichever event shall first
     occur. If the Wife concludes her college education and
     secures a full time job prior to March, 1985, then the
     Husband's payments shall be reduced to $600.00 per
     month at said time.

     In 1991, 1992, and 1993, the three children lived with their

mother.   They visited petitioner in the summer and on holidays.

During those years, the twins were students at Florida A&M

University in Tallahassee, Florida, and they stayed in a

dormitory during the school year.

     On January 31, 1990, the Circuit Court for Montgomery

County, Maryland, found that petitioner was in arrears in the

payment of support for his three children and ordered him to make

monthly payments toward that support through the court clerk.

Petitioner made payments of $7,072 in 1991, $6,300 in 1992, and

$6,300 in 1993 pursuant to the court order.
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     In the notice of deficiency sent January 26, 1995,

respondent disallowed petitioner's claimed alimony deductions in

the amount of $10,185 for 1991, $10,815 for 1992, and $10,800 for

1993.   Respondent also disallowed the dependency exemptions

claimed for petitioner's three children and computed his tax

liability as a single person for each year.    Respondent also

determined that petitioner was liable for the accuracy-related

penalty under section 6662(a).    Under the heading "Other

Information" at the fourth page of the statutory notice,

respondent explained:

     We have disallowed the dependency exemptions because
     you did not qualify for them since you did not have
     custody of the children and your divorce decree did not
     specify that you are entitled to the exemptions. We
     have therefore disallowed the head of household status
     taken in 1993. Child support is not deductible as
     alimony.

                                OPINION

     Petitioner has the burden of proving that respondent's

determinations are erroneous.    Rule 142(a); New Colonial Ice Co.

v. Helvering, 292 U.S. 435, 440 (1934).

     With respect to the claimed alimony deductions, petitioner

presented no admissible evidence at trial that he made payments

during the years in issue to his former wife that qualified as

alimony.   Under the terms of the agreement, as quoted in our

findings, alimony normally would have ceased being due to his

former wife in March 1985.   Thereafter, he was obligated to make
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payments for child support, which is not deductible.       As of the

time of the court order in 1990, petitioner was in arrears for

child support, and the only payments that petitioner has

substantiated were stipulated to have been made pursuant to that

court order.

     During trial, petitioner presented a computer summary of

payments that he allegedly made to his former wife during the

years in issue.    That summary, however, was prepared shortly

before trial and was not corroborated by any canceled checks or

other original documents.    Petitioner was afforded the

opportunity after trial to present additional documents for

stipulation, but he did not do so.       Petitioner has failed to

prove that he made any deductible alimony payments during the

years in issue.

     To be entitled to a dependency exemption under section

151(c), petitioner must prove that he meets the conditions of

section 152(e) as follows:

          (e) Support Test in Case of Child of Divorced
     Parents, Etc.--

               (1) Custodial parent gets exemption.--Except
          as otherwise provided in this subsection, if--

                       (A) a child (as defined in section
                  151(c)(3)) receives over half of his support
                  during the calendar year from his parents--

                            (i) who are divorced or legally
                       separated under a decree of divorce or
                       separate maintenance,
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               (ii) who are separated under a
          written separation agreement, or

               (iii) who live apart at all times
          during the last 6 months of the calendar
          year, and

          (B) such child is in the custody of one
     or both of his parents for more than one-half
     of the calendar year,

such child shall be treated, for purposes of
subsection (a), as receiving over half of his
support during the calendar year from the parent
having custody for a greater portion of the
calendar year (hereinafter in this subsection
referred to as the "custodial parent").

     (2) Exception where custodial parent releases
claim to exemption for the year.--A child of
parents described in paragraph (1) shall be
treated as having received over half of his
support during a calendar year from the
noncustodial parent if--

          (A) the custodial parent signs a written
     declaration (in such manner and form as the
     Secretary may by regulations prescribe) that
     such custodial parent will not claim such
     child as a dependent for any taxable year
     beginning in such calendar year, and

          (B) the noncustodial parent attaches
     such written declaration to the noncustodial
     parent's return for the taxable year
     beginning during such calendar year.

For purposes of this subsection, the term
"noncustodial parent" means the parent who is not
the custodial parent.

     (3) Exception for multiple-support
agreement.--This subsection shall not apply in any
case where over half of the support of the child
is treated as having been received from a taxpayer
under the provisions of subsection (c).
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     (4) Exception for certain pre-1985
instruments.--

          (A) In general.--A child of parents
     described in paragraph (1) shall be treated
     as having received over half his support
     during a calendar year from the noncustodial
     parent if--

               (i) a qualified pre-1985 instrument
          between the parents applicable to the
          taxable year beginning in such calendar
          year provides that the noncustodial
          parent shall be entitled to any
          deduction allowable under section 151
          for such child, and

               (ii) the noncustodial parent
          provides at least $600 for the support
          of such child during such calendar year.

     For purposes of this subparagraph, amounts
     expended for the support of a child or
     children shall be treated as received from
     the noncustodial parent to the extent that
     such parent provided amounts for such
     support.

          (B) Qualified pre-1985 instrument.--For
     purposes of this paragraph, the term
     "qualified pre-1985 instrument" means any
     decree of divorce or separate maintenance or
     written agreement--

               (i) which is executed before
          January 1, 1985,

               (ii) which on such date contains
          the provision described in subparagraph
          (A)(i), and

               (iii) which is not modified on or
          after such date in a modification which
          expressly provides that this paragraph
          shall not apply to such decree or
          agreement.
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The divorce decree in the proceeding between petitioner and his

former spouse did not award custody to petitioner and was silent

as to whether he was entitled to the exemption otherwise

allowable under section 151.   There is no evidence that

petitioner's former wife released her claim to exemptions for the

children, and there is no evidence as to the amounts for support

of the children provided by petitioner's former wife.     Thus,

petitioner has failed to prove that he furnished more than

one-half the support for any of the children.    Because petitioner

has not shown that he qualifies under section 152(a) or (e),

supra, he is not entitled to claim the children as dependents

during the years in issue.

     Petitioner failed to prove that he maintained as his home a

household that constituted the principal abode of any of his

children for more than one-half of 1993.    Thus, he does not

qualify as a head of a household under section 2(b)(1)(A)(i).

Respondent, therefore, correctly used rates applicable to single

taxpayers in computing petitioner's tax liability for that year.

     Section 6662(a) imposes a 20-percent addition to tax on any

portion of an underpayment that is attributable to negligence or

disregard of rules and regulations.    Sec. 6662(b)(2).   Section

6662(c) defines negligence as including any failure to make a

reasonable attempt to comply with the provisions of the Internal

Revenue Code.   Section 6664(c)(1) provides:
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          (c) Reasonable Cause Exception.--

               (1) In general.--No penalty shall be imposed
          under this part with respect to any portion of an
          underpayment if it is shown that there was a
          reasonable cause for such portion and that the
          taxpayer acted in good faith with respect to such
          portion.

So far as the record reflects, petitioner's deduction of alimony

had no factual basis.   Although he did substantiate payments

toward support of his children, he has failed to prove that he

made a reasonable effort to determine whether those payments

qualified him for dependency exemptions for the years in issue or

for head of household status for 1993.     He has failed to prove

that he is not liable for the penalties determined by respondent.

                                            Decision will be entered

                                       for respondent.
