IN THE OREGON TAX COURT MAGISTRATE DIVISION Income Tax
FILEMON CHAVEZ-TENA, ) ) Plaintiff, ) TC-MD 111015C ) v. ) ) DEPARTMENT OF REVENUE, ) State of Oregon, ) ) Defendant. ) DECISION
Plaintiff has appealed adjustments made by Defendant to his state tax returns for 2008
and 2009. Trial was held in Salem on April 3, 2012. Plaintiff appeared on his own behalf, aided
by two Spanish language interpreters. Defendant was represented by Kyle Quiring, Tax Auditor,
Oregon Department of Revenue.
I. STATEMENT OF FACTS
Plaintiff filed Oregon tax returns for 2008 and 2009 on August 30, 2010. Defendant
issued a Notice of Deficiency for the 2008 tax year on December 20, 2010, and a Notice of
Deficiency Assessment on February 15, 2011. Defendant issued a Notice of Deficiency for the
2009 tax year on November 9, 2010. Plaintiff subsequently filed an amended 2009 Oregon
return November 22, 2010. Defendant issued a Notice of Deficiency Assessment for the 2009
tax year on January 19, 2011. For reasons not entirely clear the court, Defendant then issued
Plaintiff a refund based on Plaintiff‟s amended 2009 Oregon return on June 27, 2011.1
Plaintiff claimed himself and six other individuals as dependents (for a total of seven
dependents) on both returns (2008 and 2009). The dependents Plaintiff claimed were his mother
1 It is likely that Defendant was processing the assessment for 2009 following the earlier deficiency, and that the 2009 amended return Plaintiff filed was processed separately and ultimately generated a refund that Defendant now seeks to reclaim by disallowing the two dependents and changing Plaintiff‟s filing status to single.
DECISION TC-MD 111015C 1 and father, two nephews, and two godchildren. All of those individuals live in Mexico in a
house owned by Plaintiff. Plaintiff also chose a filing status of head of household for both tax
years.
Defendant allowed only one dependent (Plaintiff) for 2008 and three dependents
(Plaintiff and his two parents) for 2009. Because Defendant disallowed all of the dependents
(other than Plaintiff) on Plaintiff‟s 2008 return, Defendant changed Plaintiff‟s 2008 filing status
from head of household to single.
Plaintiff has appealed those adjustments to this court, requesting that the court allow all
claimed dependents on his returns for both tax years. If the court allows any dependents,
Plaintiff would be allowed the head of household filing status as well.
Defendant has asked the court to uphold the assessment for 2008 and to allow an
additional deficiency for 2009 in the amount of $672. (See Def‟s Ans at 1; Def‟s Ex B-1.) That
deficiency would follow from disallowing the two dependent exemptions Defendant believes
were erroneously allowed on the amended 2009 return, and changing Plaintiff‟s 2009 filing
status to single.
II. ANALYSIS
As this court has previously noted, “[t]he Oregon legislature intended to make Oregon
personal income tax law identical to the Internal Revenue Code (IRC) for purposes of
determining Oregon taxable income, subject to adjustments and modifications specified in
Oregon law. ORS 316.007.” Ellison v. Dept. of Rev., TC-MD No 041142D, WL 2414746 at *6
(Sept 23, 2005). As a result, the legislature adopted, by reference, the federal definition for
dependents, including those allowed under section 152 of the Internal Revenue Code (IRC).
///
DECISION TC-MD 111015C 2 IRC section 152(a) generally defines dependent to include a qualifying child, or a
“qualifying relative.” Parents and nephews are “qualifying relatives,” but persons not related by
blood or marriage--e.g., godchildren--are not. IRC § 152(d)(2) (defining a qualifying relative as
“an individual [who] bears a relationship to the taxpayer described in th[at] paragraph,” the list
of which includes individuals generally related by blood or marriage including the taxpayer‟s
children and descendents of such children, brothers, sisters, stepbrothers and stepsisters, a father
or mother, stepfather or stepmother, children of a brother or sister of the taxpayer and the various
in-laws). Thus, Plaintiff has four qualifying relatives. Additionally, “[t]he term „dependent‟
does not include an individual who is not a citizen or national of the United States unless such
individual is a resident of the United States or a country contiguous to the United States.” IRC
152(b)(3). Plaintiff‟s relatives in Mexico, a country contiguous to the United States, meet that
requirement.
To claim a qualifying relative as a dependent, a taxpayer must provide more than one-
half of the individual‟s support for the calendar year. IRC § 152(d)(1)(C) (requiring that the
taxpayer claiming the dependent “provides over one-half of the individual‟s support for the
calendar year”). Moreover, a taxpayer must not only provide over one-half of the support, but be
able to prove that support.
“In all proceedings before the judge or a magistrate of the tax court and upon appeal
therefrom, a preponderance of the evidence shall suffice to sustain the burden of proof. The
burden of proof shall fall upon the party seeking affirmative relief * * *.” ORS 305.427.2 This
court has previously ruled that “[p]reponderance of the evidence means the greater weight of
evidence, the more convincing evidence.” Feves v. Dept. of Revenue, 4 OTR 302, 312 (1971).
2 All references to the Oregon Revised Statutes (ORS) are to 2009.
DECISION TC-MD 111015C 3 See also Riley Hill General Contractor v. Tandy Corp., 303 Or 390, 394, 737 P2d 595 (1987)
(noting that the Latin origin of the word preponderance “translates to „outweigh, be of greater
weight,‟ ” and “is generally accepted to mean the greater weight of evidence”).
Defendant is willing to accept that Plaintiff sent approximately $7600 to his family in
Mexico in 2008 and approximately $4181 in 2009. While Defendant‟s representative stated at
trial that he respected Plaintiff for helping his family, he did not believe Plaintiff should be
allowed to claim any of the dependents in Mexico because there is no way to determine from the
evidence presented whether Plaintiff satisfies the support test in IRC section 152. The court
agrees.
Plaintiff submitted a sworn statement given by his parents in Mexico which indicates that
they (the parents) and the four children living in the home with them “depend economically” on
their son--Plaintiff in this case--and that Plaintiff has “frequently” sent money to them for
housing, food, clothing and medical expenses for the last 11 years. (Ptf‟s Ex 1.) However,
Plaintiff testified that he has no receipts for the family‟s household expenses in Mexico because
merchants in that country generally do not give receipts. Moreover, when questioned by the
court, Plaintiff was only able to estimate the family‟s likely monthly grocery budget, testifying
that he believed they spent approximately $400 per month on food. Additionally, Plaintiff‟s
home in Mexico where his relatives live sits on 24 acres of land and Plaintiff testified that the
family grows vegetables (primarily corn, beans and squash) for their own personal consumption.
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IN THE OREGON TAX COURT MAGISTRATE DIVISION Income Tax
FILEMON CHAVEZ-TENA, ) ) Plaintiff, ) TC-MD 111015C ) v. ) ) DEPARTMENT OF REVENUE, ) State of Oregon, ) ) Defendant. ) DECISION
Plaintiff has appealed adjustments made by Defendant to his state tax returns for 2008
and 2009. Trial was held in Salem on April 3, 2012. Plaintiff appeared on his own behalf, aided
by two Spanish language interpreters. Defendant was represented by Kyle Quiring, Tax Auditor,
Oregon Department of Revenue.
I. STATEMENT OF FACTS
Plaintiff filed Oregon tax returns for 2008 and 2009 on August 30, 2010. Defendant
issued a Notice of Deficiency for the 2008 tax year on December 20, 2010, and a Notice of
Deficiency Assessment on February 15, 2011. Defendant issued a Notice of Deficiency for the
2009 tax year on November 9, 2010. Plaintiff subsequently filed an amended 2009 Oregon
return November 22, 2010. Defendant issued a Notice of Deficiency Assessment for the 2009
tax year on January 19, 2011. For reasons not entirely clear the court, Defendant then issued
Plaintiff a refund based on Plaintiff‟s amended 2009 Oregon return on June 27, 2011.1
Plaintiff claimed himself and six other individuals as dependents (for a total of seven
dependents) on both returns (2008 and 2009). The dependents Plaintiff claimed were his mother
1 It is likely that Defendant was processing the assessment for 2009 following the earlier deficiency, and that the 2009 amended return Plaintiff filed was processed separately and ultimately generated a refund that Defendant now seeks to reclaim by disallowing the two dependents and changing Plaintiff‟s filing status to single.
DECISION TC-MD 111015C 1 and father, two nephews, and two godchildren. All of those individuals live in Mexico in a
house owned by Plaintiff. Plaintiff also chose a filing status of head of household for both tax
years.
Defendant allowed only one dependent (Plaintiff) for 2008 and three dependents
(Plaintiff and his two parents) for 2009. Because Defendant disallowed all of the dependents
(other than Plaintiff) on Plaintiff‟s 2008 return, Defendant changed Plaintiff‟s 2008 filing status
from head of household to single.
Plaintiff has appealed those adjustments to this court, requesting that the court allow all
claimed dependents on his returns for both tax years. If the court allows any dependents,
Plaintiff would be allowed the head of household filing status as well.
Defendant has asked the court to uphold the assessment for 2008 and to allow an
additional deficiency for 2009 in the amount of $672. (See Def‟s Ans at 1; Def‟s Ex B-1.) That
deficiency would follow from disallowing the two dependent exemptions Defendant believes
were erroneously allowed on the amended 2009 return, and changing Plaintiff‟s 2009 filing
status to single.
II. ANALYSIS
As this court has previously noted, “[t]he Oregon legislature intended to make Oregon
personal income tax law identical to the Internal Revenue Code (IRC) for purposes of
determining Oregon taxable income, subject to adjustments and modifications specified in
Oregon law. ORS 316.007.” Ellison v. Dept. of Rev., TC-MD No 041142D, WL 2414746 at *6
(Sept 23, 2005). As a result, the legislature adopted, by reference, the federal definition for
dependents, including those allowed under section 152 of the Internal Revenue Code (IRC).
///
DECISION TC-MD 111015C 2 IRC section 152(a) generally defines dependent to include a qualifying child, or a
“qualifying relative.” Parents and nephews are “qualifying relatives,” but persons not related by
blood or marriage--e.g., godchildren--are not. IRC § 152(d)(2) (defining a qualifying relative as
“an individual [who] bears a relationship to the taxpayer described in th[at] paragraph,” the list
of which includes individuals generally related by blood or marriage including the taxpayer‟s
children and descendents of such children, brothers, sisters, stepbrothers and stepsisters, a father
or mother, stepfather or stepmother, children of a brother or sister of the taxpayer and the various
in-laws). Thus, Plaintiff has four qualifying relatives. Additionally, “[t]he term „dependent‟
does not include an individual who is not a citizen or national of the United States unless such
individual is a resident of the United States or a country contiguous to the United States.” IRC
152(b)(3). Plaintiff‟s relatives in Mexico, a country contiguous to the United States, meet that
requirement.
To claim a qualifying relative as a dependent, a taxpayer must provide more than one-
half of the individual‟s support for the calendar year. IRC § 152(d)(1)(C) (requiring that the
taxpayer claiming the dependent “provides over one-half of the individual‟s support for the
calendar year”). Moreover, a taxpayer must not only provide over one-half of the support, but be
able to prove that support.
“In all proceedings before the judge or a magistrate of the tax court and upon appeal
therefrom, a preponderance of the evidence shall suffice to sustain the burden of proof. The
burden of proof shall fall upon the party seeking affirmative relief * * *.” ORS 305.427.2 This
court has previously ruled that “[p]reponderance of the evidence means the greater weight of
evidence, the more convincing evidence.” Feves v. Dept. of Revenue, 4 OTR 302, 312 (1971).
2 All references to the Oregon Revised Statutes (ORS) are to 2009.
DECISION TC-MD 111015C 3 See also Riley Hill General Contractor v. Tandy Corp., 303 Or 390, 394, 737 P2d 595 (1987)
(noting that the Latin origin of the word preponderance “translates to „outweigh, be of greater
weight,‟ ” and “is generally accepted to mean the greater weight of evidence”).
Defendant is willing to accept that Plaintiff sent approximately $7600 to his family in
Mexico in 2008 and approximately $4181 in 2009. While Defendant‟s representative stated at
trial that he respected Plaintiff for helping his family, he did not believe Plaintiff should be
allowed to claim any of the dependents in Mexico because there is no way to determine from the
evidence presented whether Plaintiff satisfies the support test in IRC section 152. The court
agrees.
Plaintiff submitted a sworn statement given by his parents in Mexico which indicates that
they (the parents) and the four children living in the home with them “depend economically” on
their son--Plaintiff in this case--and that Plaintiff has “frequently” sent money to them for
housing, food, clothing and medical expenses for the last 11 years. (Ptf‟s Ex 1.) However,
Plaintiff testified that he has no receipts for the family‟s household expenses in Mexico because
merchants in that country generally do not give receipts. Moreover, when questioned by the
court, Plaintiff was only able to estimate the family‟s likely monthly grocery budget, testifying
that he believed they spent approximately $400 per month on food. Additionally, Plaintiff‟s
home in Mexico where his relatives live sits on 24 acres of land and Plaintiff testified that the
family grows vegetables (primarily corn, beans and squash) for their own personal consumption.
That activity presumably reduces the family‟s food budget for at least part of the year.
As for the other typical household expenses, Plaintiff candidly acknowledged that he had
no idea as to how much money the family in Mexico spent for clothing, housing (including
DECISION TC-MD 111015C 4 water, electricity, phone, and cable TV), or medical care. Plaintiff testified that it was
“impossible to guess.”
Furthermore, Plaintiff testified that his father worked in 2008 and 2009 and earned
approximately $300 per month. That amounts to approximately $3600 per year for each of those
Therefore, although the parties agree on the amount of money Plaintiff sent to Mexico in
2008 and 2009, the court cannot determine whether Plaintiff provided more than half of the
support in either year for the four qualifying relatives living in Mexico. That is so because it is
not entirely clear how much money flowed into that household in the years in question, the value
of the food the family grew in 2008 and 2009, or what the household expenses were for the four
qualifying relatives. Without all of that information, the court is unable to determine whether
Plaintiff provided at least one-half of the support for the relatives in Mexico.
III. CONCLUSION
The court concludes that Plaintiff has failed to demonstrate by a preponderance of the
evidence that he provided over one-half of the support of the four qualifying relatives living in
Mexico to whom he sent money in 2008 and 2009, and Plaintiff is therefore unable to claim them
as dependents on his state tax returns for those years. Plaintiff cannot claim as dependents the
two godchildren living with his family in Mexico because they are not qualifying relatives as that
term is defined under the federal tax code. Accordingly, Plaintiff can only claim himself as a
dependent in 2008 and 2009, and his filing status for those two years is single rather than head of
household. Furthermore, Defendant‟s additional $672 deficiency for 2009 is allowed because
Plaintiff is not allowed to claim the two dependents Defendant erroneously allowed after
Plaintiff filed his amended 2009 return. Now, therefore,
DECISION TC-MD 111015C 5 IT IS THE DECISION OF THIS COURT that Plaintiff‟s appeal for 2008 and 2009 is
denied and Defendant‟s additional $672 deficiency for 2009 is allowed.
Dated this day of April 2012.
JILL A. TANNER PRESIDING MAGISTRATE
If you want to appeal this Decision, file a Complaint in the Regular Division of the Oregon Tax Court, by mailing to: 1163 State Street, Salem, OR 97301-2563; or by hand delivery to: Fourth Floor, 1241 State Street, Salem, OR.
Your Complaint must be submitted within 60 days after the date of the Decision or this Decision becomes final and cannot be changed.
This document was signed by Presiding Magistrate Jill A. Tanner on April 30, 2012. The Court filed and entered this document on April 30, 2012.
DECISION TC-MD 111015C 6