T.C. Summary Opinion 2002-46
UNITED STATES TAX COURT
MICHAEL J. GENTNER, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 9204-00S. Filed May 6, 2002.
Michael J. Gentner, pro se.
John Aletta, for respondent.
DINAN, Special Trial Judge: This case was heard pursuant to
the provisions of section 7463 of the Internal Revenue Code in
effect at the time the petition was filed. The decision to be
entered is not reviewable by any other court, and this opinion
should not be cited as authority. Unless otherwise indicated,
subsequent section references are to the Internal Revenue Code in
effect for the year in issue.
- 2 -
Respondent determined a deficiency in petitioner’s Federal
income tax of $3,499 for the taxable year 1998.
The issues for decision are whether, with respect to taxable
year 1998, petitioner is entitled to: (1) Four dependency
exemption deductions, and (2) four child tax credits.
Some of the facts have been stipulated and are so found.
The stipulations of fact and the attached exhibits are
incorporated herein by this reference. Petitioner resided in
Stamford, New York, on the date the petition was filed in this
case.
Petitioner was separated from his wife at some point in time
prior to December 29, 1994. On that date, a temporary support
order was entered by the Clerk of the Family Court of the State
of New York, County of Schoharie. This order required petitioner
to make monthly payments of $780 to his wife for the support of
their four children. The order also reflects that a prior
Temporary Order of Protection had been issued against petitioner.
After the separation, petitioner continued to pay for
medical insurance for the children and for various expenses
related to the marital home, including monthly mortgage payments
of $410.29 and homeowner’s insurance. During 1998, the children
resided exclusively in the jointly owned marital home with
petitioner’s wife; at no time during 1998 did the children reside
with petitioner.
- 3 -
Petitioner was granted a divorce in 1999, but the divorce
was appealed by petitioner and his wife. The current status of
the appeal is unknown, but petitioner’s wife has remarried.
Petitioner sees his two youngest children once a month and sees
the two older children much less frequently. He continues to pay
support and provide medical insurance for the children; he paid
for medical insurance for his wife through 1999. He has also
paid for other expenses for the children over the years,
including clothing expenses.
Petitioner filed a Federal income tax return for taxable
year 1998 with the filing status married filing separately. For
each of his four children, petitioner claimed a dependency
exemption deduction and a child tax credit. Petitioner reported
the following tax liability:
Pension and annuity income $31,246
Itemized deductions (5,214)
Personal exemption deduction (2,700)
Dependency exemption deductions (10,800)
Taxable income 12,532
Tax from tax tables 1,879
Child tax credits (1,600)
Tax 279
Only what appears to be the cover sheet from the statutory
notice of deficiency, without attachments, was introduced into
evidence. Consequently, we do not have before us the rationale
for respondent’s adjustments. The petition, along with the
parties’ arguments and testimony, center around petitioner’s
entitlement to the four dependency exemption deductions.
- 4 -
The first issue for decision is whether petitioner is
entitled to four dependency exemption deductions for taxable year
1998.
A deduction generally is allowed under section 151(a) for
each dependent of a taxpayer. Sec. 151(a), (c)(1). Subject to
exceptions and limitations not applicable here, a child of a
taxpayer is a dependent of the taxpayer only if the taxpayer
provides over half of the child’s support for the taxable year.
Sec. 152(a). A special rule applies to taxpayer-parents who are
divorced, who are separated, or who live apart from their spouses
for at least the last 6 months of the calendar year, but who have
custody of the child for more than half of the year. Sec.
152(e)(1). Under this rule, the parent with custody of the child
for the greater portion of the year (the “custodial parent”)
generally is treated as having provided over half of the child’s
support. Id.1 Custody is defined in the regulations as follows:
“Custody”, for purposes of this section, will be
determined by the terms of the most recent decree of divorce
or separate maintenance, or subsequent custody decree, or,
if none, a written separation agreement. In the event of
so-called “split” custody, or if neither a decree or
agreement establishes who has custody, or if the validity or
continuing effect of such decree or agreement is uncertain
by reason of proceedings pending on the last day of the
calendar year, “custody” will be deemed to be with the
1
For this rule to apply, the parents together must provide
over half of the child’s support. Sec. 152(e)(1)(A). We assume
arguendo that this requirement has been met. If it had not been
met, petitioner alone necessarily could not have provided over
half of his children’s support, as required under sec. 152(a).
- 5 -
parent who, as between both parents, has the physical
custody of the child for the greater portion of the calendar
year.
Sec. 1.152-4(b), Income Tax Regs. One exception to this special
rule exists which entitles the noncustodial parent to the
dependency exemption deduction. Sec. 152(e). For the exception
to apply, the custodial parent must sign a written declaration
releasing his or her claim to the deduction, and the noncustodial
parent must attach the declaration to his or her tax return.
Sec. 152(e)(2).
The record leaves several gaps in the recounting of the
legal process relating to petitioner’s divorce. However, it
appears that the only governing legal document concerning
petitioner’s custodial relationship with the children, as of
1998, is the temporary order issued in 1994. It is evident from
this order--as well as from the fact that the children physically
resided exclusively with petitioner’s wife--that petitioner’s
wife was the custodial parent during 1998. Petitioner did not
attach to his return a written declaration from his wife
releasing her claim to the dependency exemption deductions for
1998. Therefore, petitioner, as the noncustodial parent, is not
entitled to the dependency exemption deductions for that year,
regardless of the amount he contributed toward the support of his
children. Secs. 151 and 152.
- 6 -
The second issue for decision is whether petitioner is
entitled to four child tax credits for taxable year 1998.
Subject to limitations and exceptions not applicable here, a
$400 credit is allowed to a taxpayer for each qualifying child of
the taxpayer. Sec. 24(a). Among other requirements, a
qualifying child is one for whom the taxpayer is entitled to a
dependency exemption deduction under section 151. Sec.
24(c)(1)(A). Because petitioner is not entitled to the
dependency exemption deductions for his children, he also is not
entitled to the child tax credits for them.
Reviewed and adopted as the report of the Small Tax Case
Division.
To reflect the foregoing,
Decision will be entered
for respondent.