In Uncategorized on 01/25/2021 at 10:46

A proper fraction, the arithmeticians tell me, is one which represents less than the whole; briefly, a proper fraction is less than 1.

Judge Patrick J (“Scholar Pat”) Urda confronts a proper fraction when dealing with Patricia Dumas, Docket No. 22859-19, filed 1/25/21, an off-the-bencher. It’s an EITC and additional child care credit, with Patricia’s grandson JCN (minor children have only initials in Tax Court; see Rule 27(a)(3)) as her qualifying child.

JCN passes the Section 152 relationship test, doesn’t provide more than half his own support, and isn’t married so doesn’t file MFJ. The problem is, he’s born during the year at issue, so couldn’t have lived more than half the year with Patricia.

To the rescue comes Reg Section 1.152-4(d)(1), Proposed Income Tax Regs., 82 Fed Reg.6370, 6387, Jan. 19, 2017. “If an individual is born or dies during a taxpayer’s taxable year, the residency test for a qualifying child is treated as met if the taxpayer and the individual have the same principal place of abode for more than one-half of the portion of the taxable year during which the individual is alive.” Order, Transcript, at p. 7, footnote 2.

A tip of the battered Taishoff Stetson to Kimberly A. Daigle, Esq., IRS’ counsel, for bringing the temp. reg. to the Court’s attention on the trial, and another to Joseph B. Schimmel, Esq., for representing Patricia at the calendar call. It would be great if these appearances appeared on the docket sheet, but DAWSON.

Howbeit, Patricia has only her own testimony for the number of nights young JCN stayed beneath her roof, and that doesn’t get it done, though obviously Judge Scholar Pat and Mr. Schimmel are trying to cut Patricia as much cliché as they can.

“On the record before us, we are unable to determine the number of nights in [year at issue] that JCN stayed in Ms. Dumas’ house.  Ms. Dumas did not present any evidence beyond her own testimony, such as a calendar, an agreement with her daughter, an affidavit, or testimony from another witnesses (such as her daughter), regarding the number of nights JCN spent at her home in [year at issue].   When asked by the Court how often JCN stayed with her, Ms. Dumas could not provide an estimated number of nights.  Instead, she vaguely testified that:  ‘So yes, I kept him.  He did stay the night a lot of nights.’  When asked by the Court whether she had a certain agreement with her daughter with regard to caring for JCN, she answered that:  ‘I would keep him.  * * *  But he has stayed the night.'” Order, Transcript, at p. 8.

Not good enough.

But Judge Scholar Pat has given Patricia and anyone similarly situated a checklist for substantiating residence requirements for EITC and additional child care credit.


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