T.C. Summary Opinion 2002-112
UNITED STATES TAX COURT
EDWARD REISS, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 9318-01S. Filed August 28, 2002.
Edward Reiss, pro se.
Marie E. Small, for respondent.
POWELL, Special Trial Judge: This case was heard pursuant
to the provisions of section 74631 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.
Respondent determined a deficiency of $3,364 in petitioner’s
1998 Federal income tax. The issues are whether petitioner is
1
Unless otherwise indicated, subsequent section references are
to the Internal Revenue Code in effect for the year in issue.
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entitled to claim a dependency exemption deduction for his
daughter for the 1998 taxable year and whether he is entitled to
use head of household filing status. Petitioner resided in
Westport, Connecticut, at the time the petition was filed.
Background
The facts are not in dispute and may be summarized as
follows.2 Pursuant to a Decree of Dissolution of Marriage
(hereinafter referred to as the “Decree”) entered by the Superior
Court of the State of Arizona, County of Yavapai, petitioner and
his former wife, Susan Lynne Reiss, were divorced on November 9,
1992. Petitioner and his former wife had one minor child. The
Decree provided, inter alia:
2. The custody of the minor child, Ilana Michelle
Reiss, is hereby awarded to the * * * [former wife], subject
to visitation by Petitioner * * *.
3 a. * * * Petitioner shall pay to * * * [the former
wife], through the Child Support Clerk of this Court, the
sum of $1,030.00 each month as and for child support * * *.
* * * * * * *
C. So long as Petitioner is current on all child
support as of December 31 of each year, Petitioner shall be
entitled to declare Ilana Michelle Reiss as a dependant and
exemption for all federal and state income tax purposes;
that * * * [the former wife] shall sign whatever documents
are reasonably necessary to facilitate Petitioner’s
declaration of Ilana Michelle Reiss as a dependent and
exemption.
2
The facts are not in dispute, and the issue is primarily one
of law. Sec. 7491, concerning burden of proof, has no bearing on
this case.
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During 1998, petitioner’s daughter did not live with him for
more than half of the taxable year, and petitioner’s former wife
had custody of the child. Petitioner made all child support
payments as ordered by the Decree. On his 1998 Federal income
tax return, petitioner claimed a dependency exemption deduction
for his daughter and head of household filing status.
Notwithstanding the provisions of the Decree, petitioner’s former
wife refused to sign Form 8332, Release of Claim to Exemption for
Child of Divorced or Separated Parents.
Discussion
1. Dependency Exemption
Section 151 provides that in computing taxable income an
individual is entitled to deduct an exemption for qualified
dependents as that term is defined in section 152. Section 152
defines a “dependent” as a son, daughter, sibling, parent, or an
individual who has as a principal place of abode the home of the
taxpayer and is a member of the taxpayer’s household.
Section 152(e) provides that in the case of divorced
parents:
SEC. 152(e) Support Test in Case of Child of Divorced
Parents, Etc.--
(1) Custodial parent gets exemption.--Except as
otherwise provided in this subsection, if--
(A) a child * * * receives over half of his
support during the calendar year from his parents--
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(i) who are divorced or legally separated
under a decree of divorce or separate
maintenance,
(ii) who are separated under a written
separation agreement, or
(iii) who live apart at all times during the
last 6 months of the calendar year, and
(B) such child is in the custody of one or both
of his parents for more than one-half of the calendar
year,
such child shall be treated, for purposes of subsection (a),
as receiving over half of his support during the calendar
year from the parent having custody for a greater portion of
the calendar year (hereinafter in this subsection referred
to as the “custodial parent”).
(2) Exception where custodial parent releases claim to
exemption for the year.--A child of parents described in
paragraph (1) shall be treated as having received over half
of his support during a calendar year from the noncustodial
parent if--
(A) the custodial parent signs a written
declaration (in such manner and form as the Secretary
may by regulations prescribe) that such custodial
parent will not claim such child as a dependent for any
taxable year beginning in such calendar year, and
(B) the noncustodial parent attaches such
written declaration to the noncustodial parent’s return
for the taxable year beginning during such calendar
year.
The regulations provide that a noncustodial parent may claim
an exemption for a dependent child “only if the noncustodial
parent attaches to his/her income tax return for the year of the
exemption a written declaration from the custodial parent stating
that he/she will not claim the child as a dependent”. Sec.
1.152-4T(a), Q&A-3, Temporary Income Tax Regs., 49 Fed. Reg.
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34451 (Aug. 31, 1984). The declaration required must be made on
a form provided by the Internal Revenue Service (Form 8332) or on
a statement that “[conforms] to the substance of such form.” Id.
In Miller v. Commissioner, 114 T.C. 184 (2000), we
recognized that an alternative to Form 8332 may be used by the
noncustodial parent to substantiate his right to claim a
dependency exemption for his child. Any alternative
must contain substantially the same information required by
Form 8332. In particular, the document must satisfy the
signature requirement of section 152(e)(2). The signature
of the custodial parent is critical to the successful
implementation of Congress’ plan to eliminate support-based
disputes regarding dependency exemptions and to simplify the
rules regarding when a noncustodial parent may claim the
dependency exemptions for his or her children. [Id. at 191-
192.]
We rejected the argument in Miller that a court decree, even if
executed by the former spouse, satisfied the requirements of
section 152(e)(2). In this case, petitioner is the noncustodial
parent. The Decree required petitioner’s former wife to execute
the statement required; she, however, refused to do so. While we
are sympathetic to petitioner’s plight, we note that petitioner’s
remedy lies with the Arizona divorce court. It is not within
this Court to enforce that decree. We recognize that, as
petitioner points out, enforcing the Decree may involve an
expenditure of funds, but that is a decision that petitioner must
make. Petitioner has not chosen that route, and he is not
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entitled to claim a dependency exemption deduction for his
daughter on his 1998 Federal income tax return.
2. Filing Status
Section 2(b)(1), provides:
(1) In general.--For purposes of this subtitle, an
individual shall be considered a head of a household if, and
only if, such individual is not married at the close of his
taxable year, is not a surviving spouse (as defined in
subsection (a)), and either--
(A) maintains as his home a household which
constitutes for more than one-half of such taxable year
the principal place of abode, as a member of such
household, of--
(i) a * * * daughter * * *.
Since his daughter did not live with petitioner for more
than half of the taxable year, petitioner is not entitled to head
of household filing status for the taxable year 1998.
Reviewed and adopted as the report of the Small Tax Case
Division.
Decision will be entered
for respondent.