T.C. Summary Opinion 2002-104
UNITED STATES TAX COURT
SHALOM J. & DANIEL F. BONHAM, Petitioners v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 6201-01S. Filed August 7, 2002.
Daniel F. Bonham, pro se.
Robert V. Boeshaar, for respondent.
PAJAK, 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, and all Rule references are to the
Tax Court Rules of Practice and Procedure.
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Respondent determined a deficiency in petitioners’ 1998
Federal income tax in the amount of $1,880. After concessions by
respondent, the Court must decide whether petitioners are
entitled to claim a dependency exemption deduction for Ammon
Bonham.
Some of the facts in this case have been stipulated and are
so found. Petitioners resided in Woodburn, Oregon, when their
petition was filed.
Beginning on January 1, 1996, petitioner Daniel F. Bonham’s
son by a previous marriage, Ammon Bonham (Ammon), lived with
petitioners. During the taxable year 1998 Ammon lived with
petitioners for the entire year. Petitioners provided 100
percent of Ammon’s support during the taxable year 1998.
Petitioners claimed a dependency exemption for Ammon on their
1998 income tax return.
In 1987, petitioner Daniel F. Bonham (petitioner) was
divorced from Michelle Cutler, by a decree of divorce from a Utah
civil court (the divorce decree). The divorce decree is not in
the record. The divorce decree awarded Michelle Cutler full
custody of Ammon.
Respondent, among other things, disallowed the dependency
exemption deduction for Ammon Bonham. Section 151(c) allows a
taxpayer to deduct an annual exemption amount for each dependent,
as defined in section 152. Under section 152(a), the term
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“dependent” means, in pertinent part, a son of the taxpayer over
half of whose support was received from the taxpayer. Sec.
152(a)(1).
In the case of a child of divorced parents, section
152(e)(1) provides in pertinent part that if a child receives
over half of his support from his parents who are divorced under
a decree of divorce and the child is in the custody of one or
both of his parents for more than one-half of the year, then the
child will be treated as receiving over half of his support from
the parent having custody for a greater portion of the calendar
year.
Section 1.152-4(b), Income Tax Regs., provides that the term
“custody” is “determined by the terms of the most recent decree
of divorce”. Because the divorce decree grants Michelle Cutler
full custody of Ammon, she is considered Ammon’s “custodial
parent” under section 152(e). Cafarelli v. Commissioner, T.C.
Memo. 1994-265.
Petitioner as the “noncustodial parent”, is allowed to claim
Ammon as a dependent only if one of three statutory exceptions in
section 152(e) is met. Under these exceptions, the “noncustodial
parent” is treated as providing over half of a child’s support
if: (1) Pursuant to section 152(e)(2), the custodial parent
signs a written declaration that such custodial parent will not
claim such child as a dependent, and the noncustodial parent
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attaches such written declaration to the noncustodial parent’s
return for the taxable year; (2) pursuant to section 152(e)(3),
there is a multiple support agreement between the parties as
provided in section 152(c); or (3) pursuant to section 152(e)(4),
there is a qualified pre-1985 instrument providing that the
noncustodial parent shall be entitled to any deduction allowable
under section 151 for such child, provided that certain other
requisites, not pertinent here, are met.
Here the exceptions in section 152(e) do not apply. We have
no choice except to find that petitioners are not entitled to
claim the dependency exemption deduction for 1998.
Reviewed and adopted as the report of the Small Tax Case
Division.
Decision will be entered
under Rule 155.