Milford E. Schluter and Olive O. Schluter, Petitioners-appellants, v. Commissioner of Internal Revenue, Respondent-appellee, 444 F.2d 107 (9th Cir. 1971)

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U.S. Court of Appeals for the Ninth Circuit - 444 F.2d 107 (9th Cir. 1971) June 9, 1971

Milford E. Schluter (argued), in pro. per.

Stephen Schwartz (argued), K. Martin Worthy, Chief Counsel, Johnnie M. Walters, Asst. Atty. Gen., Washington, D. C., for respondent-appellee.

Before MERRILL, KOELSCH and WRIGHT, Circuit Judges.


The taxpayers appeal from a decision of the Tax Court of the United States which sustained the Commissioner's determination of a deficiency of $113.98 in the joint tax returns filed by appellants for the year 1966. We affirm.

The taxpayers claimed a dependency deduction for Mr. Schluter's 17year-old son, Donald, who was living with his mother, from whom Mr. Schluter had been divorced. During the year in question Mr. Schluter paid $962.50 toward Donald's support, pursuant to the divorce decree. He claims that he also expended $219.00 for motor trips to visit his son, telephone calls, and miscellaneous gifts. The Tax Court properly disallowed these alleged additional expenses.

The Tax Court correctly placed the burden of proof upon the taxpayers to establish that they contributed more than one-half of the total support of the claimed dependent. Rezazadeh v. Commissioner of Internal Revenue, 356 F.2d 898 (7th Cir. 1966).

There was no proof nor even a reasonable estimate of the amount of support furnished Donald by his mother, with whom he lived, nor of the amount contributed by the boy himself.

The taxpayer has not met the burden of proving that he contributed more than one-half for the support of his minor son. The decision of the Tax Court was correct and is