Attorney-at-Law

WINNING A 152

In Uncategorized on 08/16/2021 at 18:54

Dependent child and child tax credit cases are tough; without an 8332, you’re out. Even with one, it isn’t easy. So a Taishoff “Good Job” goes to William K. Schmidt, Esq., of KCMO Legal Aid, who pulls a winner in Carol Denise Griffin, 2021 T. C. Sum. Op. 26, filed 8/16/21.

Carol Denise took care of Mom at her home via a contractor with Kansas Senior Services. Carol Denise also cared for her minor niece and nephews, the children of her disabled single-parent brother. Carol Denise took the dependency, child tax and EIC. She had income from the contractor. She also had an 8332 signed by her brother, but never attached it to her 1040.

IRS disallowed it all, and Carol Denise timely petitioned the SNOD.

So Judge Vasquez once again observes “…that the process of distilling truth from the testimony of witnesses, whose demeanor we observe and whose credibility we evaluate, ‘is the daily grist of judicial life’.” 2021 T. C. Sum. Op. 26, at p. 8.

IRS folds the age test, the relationship test, and the support test. IRS says the kids didn’t spend the requisite number of nights at Carol Denise’ home.

“Petitioner has demonstrated that all three children satisfied this requirement. Petitioner credibly testified that: (1) she took care of the children to help her disabled brother; (2) the children stayed overnight with her all summer and on weekends, school closures, and holidays during the school year; and (3) the children also stayed with her when they had to leave school early or when the school could not reach their father. Petitioner corroborated her testimony with a school calendar for the [year after year at issue] academic year, which confirmed that the children had at least two days off per month during the school year. After observing petitioner’s credible testimony and reviewing the school calendar, we find it more likely than not that the children resided with petitioner for more than one-half of [year at issue]. 2021 T. C. Sum. Op.  26, at p. 6-7 . (Footnote omitted, but it says that the school years are probably pretty much alike, so the next year’s calendar doesn’t vary much from the last.)

IRS’ counsel claim the school records Carol Denise submitted in evidence are inconsistent and have handwritten notes. Carol Denise explains the inconsistencies, and says the notes are the school secretary’s.

The 8332 from her brother says Carol Denise is the “non-custodial parent,” but that’s impossible. But Judge Vasquez pushes that aside. Neither party called the brother as a witness, and IRS didn’t raise missing witness to rebut.

Carol Denise wins.

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