Block v. Commissioner

¶1OPINION.

¶2This proceeding involves a deficiency in the amount of $641.34 in income tax of petitioner determined by the respondent for the calendar year 1933, resulting in part from the disallowance by respondent of $1,500 of the exemption of $2,500 claimed by petitioner on the ground that he was “head of a family.” This only is in controversy.

¶3Petitioner, during the year 1933, was married and had one child, a daughter, who was 19 years of age during that year. Although petitioner was not divorced or legally separated from his wife during that year, he did not live with his wife and daughter. Petitioner and his wife had separated several years prior to 1933, and after the separation and during the taxable year petitioner lived in one home and his wife and daughter lived in another. Neither petitioner’s wife nor his daughter had any property or independent means of support during 1933. Petitioner, during that year, furnished them money for food, clothing, living quarters, and other miscellaneous expenses. Petitioner visited his wife and daughter in their home approximately six times during the taxable year, but was consulted many times during that year with regard to his daughter’s welfare, and had, to a considerable extent, control over her conduct.

¶4It is petitioner’s contention that he is entitled to a personal exemption of $2,500 as the head of a family, pursuant to the provisions *946of section 25 (c) of the Revenue Act of 1932. This section of the revenue act, together with article 292 of Kegulations 11, which is pertinent to the question presented by this proceeding, are set out in the margin.1

¶5In the case of Alfred E. Fuhlage, 32 B. T. A. 222, we considered article 292 of Kegulations 14, which is the same as article 292 of Regulations 11, and, in approving the provisions of that regulation, we used the following language:

… This portion of the regulations is not in conflict with the statute, but is a fair interpretation thereof. It, therefore, has the force and effect of law. Maryland Casualty Co. v. United States, 251 U. S. 342. This provision of the regulations is the same as corresponding provisions of prior and subsequent regulations, and the fact that Congress has continued to reenact, in the successive revenue acts, (be provisions regarding the personal exemption of the head of a family, without change, is persuasive evidence of legislative approval of the regulation. Brewster v. Gage, 280 U. S. 327; Helvering v. Bliss, 293 U. S. 144.

¶6It is clear that petitioner “supports and maintains * * * one or more individuals who are closely connected with him by blood relationship … ” and does have a “right to exercise family control and provide for these dependent individuals … based upon some moral or legal obligation”, as the regulation provides. “Civilly, a father is entitled to the custody, services, and earnings of a minor child, and is under obligation to provide for the welfare of the child, and the child is subject to parental discipline and restraint”, Manners v. State (Ind. 1936), 5 N. E. (2d) 300. Other parts of the regulation, however, use the phrases “continuous actual residence together” and “in one household” and “the common home *947being … maintained” and indicate that the usual situation envisaged is the maintenance of one common home in which the benefactor and his dependents actually reside together. But it is apparent from still other parts of the regulation that unusual circumstances are recognized as justifying some relaxation of this requirement. If the examples of such unusual circumstances given in the regulation do not precisely describe the facts before us, they at least throw light on its intention, and we may arrive at our decision by determining whether this proceeding is more like the usual situation, on the one hand,' or the unusual circumstances recognized as exceptional, on the other. We have reached the latter conclusion. Indeed these facts closely resemble, if they do not exactly represent, those where “through force of circumstances a parent is obliged to maintain his dependent children with relatives.” Certainly we should not be justified in concluding that maintenance of a young daughter with the wife rather than in petitioner’s home was not dictated by “force of circumstances.” It seems to us that the essential elements requiring the designation of petitioner as the “head of a family” are present here, and that he comes within the fair intendment of the definition of that term as given in the regulation.

¶7Reviewed by the Board.

¶8Decision will be entered wider Bule 50.