MEMORANDUM FINDINGS OF FACT AND OPINION
CHABOT, Judge: Respondent determined a deficiency of $ 255 in petitioner's Federal income tax for 1972. The only issue is whether petitioner is entitled to claim dependency exemption deductions under section 151(e) 1 in 1972 for two children from a past marriage.
FINDINGS OF FACT
Some of the facts have been stipulated; the stipulation and the stipulated exhibits are incorporated herein by this reference.
When the petition in this case was filed, petitioner resided in Passaic, New Jersey.
Petitioner and his former wife, Genevieve E. Klypka (hereinafter sometimes referred to as "Genevieve"), were divorced on March 9, 1972. The final judgment of the Superior Court of New Jersey, Chancery Division, Passaic County, gave custody of their three children, Theresa, Mark, and Marilyn, to Genevieve. Further, petitioner was ordered to pay Genevieve $ 13 per week for each child in child support. The judgment contained no provision allocating the dependency exemptions for the three children.
Dependency exemptions for only two of the children, Mark and Marilyn, are at issue here. At the close of 1972, Mark was 18 years old and Marilyn was 17 years old.
During 1972, petitioner provided support through the Passaic County Probation Department for Mark and Marilyn in the total amounts of $ 481 and $ 689, respectively. In addition to these amounts, petitioner paid a dental bill of $ 49 for Marilyn in 1972. On his income tax return for 1972, petitioner claimed that he provided $ 676 each for Marilyn's and Mark's support in 1972.
The total amounts spent for the support of Mark and Marilyn in 1972, excluding lodging, are shown in table 1.
Table 1.
| Item | Mark | Marilyn |
| Food | $ 450 | $ 450 |
| Clothes | 50 | 100 |
| Utilities | 285 | 285 |
| Medical | 40 | 420 |
| Transportation | 305 | 165 |
| Newspapers, etc. | 20 | 20 |
| Recreation | 50 | 0 |
| High school graduation | 190 | 0 |
| Other | 2,060 | 830 |
| Totals | $ 3,450 | $ 2,270 |
Mark and Marilyn lived with Genevieve during 1972 in a house which petitioner and Genevieve owned, each with a one-half interest. 2 During 1972, Genevieve paid property taxes of $ 905.26, mortgage interest of $ 543.01, mortgage amortization of $ 442.91, curbs assessment of $ 77.78, and sewer assessment of $ 48.58 with respect to this house.
Mark was a full-time high school student from January through June 15, 1972. He had a job as a part-time short-order cook in the summer of 1972. Mark worked for Ford Motor Company about 12 weeks, from September 1972 to December 1972. He earned approximately $ 3,500 from the two jobs, of which he saved $ 100 a week while working for Ford. During the period Mark worked for Ford, he paid Genevieve $ 20 a week room and board. The difference between Mark's earnings ($ 3,500) and what he saved ($ 1,200) or paid to Genevieve for room and board ($ 240) is $ 2,060. This amount was spent by Mark on items for his own support, such as his car, clothes, entertainment, etc., and is included in table u, as "Other".
Marilyn also had a job during 1972 and earned approximately $ 1,100, of which she saved approximately $ 270. Marilyn spent the difference of $ 830 on items such as clothes, cosmetics, and entertainment for herself. This amount is also included in table 1, as "Other".
Petitioner and Genevieve together provided over half of Marilyn's support for 1972.
OPINION
Petitioner contends he is entitled to dependency exemption deductions for Marilyn and Mark. Respondent contends that (1) petitioner has failed to show that petitioner and Genevieve provided more than half of the support of Mark during 1972; and (2) Genevieve provided more of the support of Marilyn than petitioner did.Respondent concludes that petitioner is not entitled to a dependency exemption deduction for either of the two children.
We agree with respondent's conclusion. 3
Statutory framework
Section 151(e) provides, in relevant part, an "exemption of $ 750 for each dependent (as defined in section 152)". Section 152(a)4 defines a dependent to include a child over half of whose support for the calendar year was received from the taxpayer. In determining whether this support test has been met, section 152(e)5 provides that, in the absence of an agreement to the contrary, if a child receives over half of his or her support during the calendar year from the child's divorced parents, the custodial parent is treated as providing over half of the child's support. However, if the noncustodial parent provides $ 1,200 or more for the support of the child (or if there is more than one child, $ 1,200 or more for all of the children) for the calendar year, then the noncustodial parent is treated as having provided over half the support for that child unless the custodial parent clearly establishes that the custodial parent provided more for the support of that child during the calendar year.
Determining on the basis of the record before us whether petitioner is entitled to dependency deductions for Mark and Marilyn in 1972 is akin to determining the relative wealth of the Canarsie Indian tribes and the Powhatan Indian confederacy in 1626; some elements of the record are almost complete, some are quite spotty, and several of the most significant are shrouded in fog. Nevertheless, the above rules must now be applied to the individual situations of Mark and Marilyn.
Exemption for Mark
In order for the special statutory provisions with respect to children of divorced parents to apply, it must first be determined that Mark received over half of his support for 1972 from petitioner and Genevieve. (Section 152(e)(1); Hopkins v. Commissioner,55 T.C. 538, 541 (1970).)
We have found, as illustrated in table 1, that, exclusive of lodging, the total amount spent for the support of Mark in 1972 was $ 3,450.Mark provided for his own support $ 2,300 ($ 2,060 listed as "Other" in table 1, plus $ 240 Mark paid to Genevieve).
Petitioner made no attempt to provide us with even an approximate figure representing the fair rental value of lodging provided to Mark. 6 For petitioner and Genevieve to have provided more than half of Mark's support for 1972, Mark's total support would have to be more than $ 4,600 (i.e., more than twice the $ 2,300 Mark contributed). For Mark's total support to be more than $ 4,600, the fair rental value of Mark's lodging would have to be more than $ 1,150 (i.e., the amount by which more than $ 4,600 exceeds the $ 3,450 described in table 1, supra). Since Genevieve and Marilyn also shared the house and we have no basis for allocating fair rental value other than equally among Genevieve, Marilyn, and Mark, petitioner could succeed on this point only by showing that the 1972 fair rental value of the house was more than $ 3,450. The evidence in the record is insufficient to carry petitioner's burden of proof. 7
Since petitioner did not provide us with sufficient evidence to establish that he and Genevieve provided more than half of Mark's support, the requirements of section 152(e)(1)(A) are not satisfied as to Mark. As a result, the special support test for children of divorced parents set forth in section 152(e) does not apply with respect to the dependency exemption deduction claimed for Mark. The applicable statute is, then, section 152(a), which requires petitioner to carry the more onerous burden of proving that he alone provided more than one-half of Mark's support. Seraydar v. Commissioner,50 T.C. 756 (1968). Since petitioner has clearly failed to sustain this burden as well, we must uphold the determination of respondent that petitioner is not entitled to a dependency exemption deduction for Mark for 1972.
Exemption for Marilyn
As can be seen from table 1, Marilyn's total support, excluding lodging, was $ 2,270. Marilyn contributed $ 830 of this amount, with petitioner and Genevieve contributing the remainder. Consideration of the support provided by way of lodging would not change our conclusion that petitioner and Genevieve provided more than half of Marilyn's support for 1972.This satisfies the requirements of subparagraph (A) of section 152(e)(1), set forth at note 5, supra.
Since Marilyn lived with Genevieve the entire year, the requirements of subparagraph (B) of section 152(e)(1) are satisfied and Genevieve is treated as having provided over half of Marilyn's support unless section 152(e)(2) provides otherwise.
In order for petitioner to be treated as having provided over half of Marilyn's support for 1972 he must show that he provided at least $ 1,200 for Marilyn's support (sec. 152(e)(2)(B)(i)), set forth at note 5, supra.8
We have found that petitioner provided $ 738 ( $ 689 in payments through the Passaic County Probation Department, plus the $ 49 dental bill payment) for Marilyn's support, excluding lodging. For petitioner to have provided at least $ 1,200 for Marilyn's total support for 1972, petitioner's contribution to Marilyn's lodging would have to be at least $ 462 (i.e., $ 1,200 minus $ 738). If we were to agree with petitioner's claim that he should be considered as providing half the value of Marilyn's lodging (n. 6, supra), then the total value of Marilyn's lodging would have to be at least$ 924. Since Genevieve and Mark also shared the house and we have no basis for allocating fair rental value other than equally among Genevieve, Mark, and Marilyn, petitioner could succeed on this point only by showing that the 1972 fair rental value of the house was at least $ 2,772. The evidence in the record is insufficient to carry petitioner's burden of proof. See note 7, supra.
We conclude that petitioner has failed to establish that he contributed the required minimum amount of $ 1,200 to Marilyn's support during 1972. As a result, we need not consider whether respondent clearly established that Genevieve provided more support for Marilyn than petitioner did nor need we decide whether petitioner can prove he contributed over half of Marilyn's support under section 152(a). 9 Under these circumstances, we conclude and hold that respondent properly disallowed the dependency exemption deduction claimed by petitioner for Marilyn in 1972.
Decision will be entered for the respondent.