BRAMANTE v. COMMISSIONER

T.C. Memo. 2002-228

UNITED STATES TAX COURT

JOANN BRAMANTE, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 4356-01. Filed September 12, 2002.

Elizabeth A. Maresca and Jenna Nicenko (specially

recognized), for petitioner.

Theresa G. McQueeney, for respondent.

MEMORANDUM OPINION

POWELL, Special Trial Judge: Respondent determined a

deficiency of $2,725 in petitioner’s 1998 Federal income tax.

After concessions by respondent,1 the issues are (1) whether

1
Respondent concedes that petitioner is entitled to head
of household filing status and to an earned income credit. As a
result of respondent’s concession, the deficiency amount in issue
is $1,610, to be reflected in a Rule 155 computation. All Rule
references are to the Tax Court Rules of Practice and Procedure.
 - 2 -

petitioner is entitled to claim dependency exemption deductions

for her two minor children under section 1512 and (2) whether

petitioner is entitled to claim a child tax credit under section

24. Petitioner resided in Brooklyn, New York, at the time the

petition was filed.

Background

The facts may be summarized as follows. Pursuant to a

Judgment of Divorce (the judgment) entered by the Supreme Court

of the State of New York, County of Kings, petitioner and her

former spouse, Leo DiGuilio (Mr. DiGuilio), were divorced on

December 6, 1993. The judgment awarded petitioner custody of

their two minor daughters, Amanda and Geena DiGuilio (the

children). The judgment further ordered Mr. DiGuilio to pay

biweekly child support of $268. The judgment made no reference

to dependency exemption deductions for the children. Since the

divorce, petitioner has provided over half of the support for the

children.

For the taxable years 1994 to 1997, irrespective of the

dependency exemption deductions for the children, petitioner did

not have sufficient income to owe any Federal income tax.

However, Mr. DiGuilio was employed. Thus, his accountant advised

him to seek a waiver from petitioner of her claim to dependency

2
Unless otherwise indicated, section references are to
the Internal Revenue Code in effect for the year in issue.
 - 3 -

exemption deductions. The accountant prepared a Form 8332,

Release of Claim to Exemption for Child of Divorced or Separated

Parents, by typing in the children’s names. Form 8332 has two

parts. Part I pertains to the current year and states that

petitioner “[agrees] not to claim an exemption for * * * [the

children] for the tax year 1994". Part II pertains to exemptions

for future years and states that petitioner “[agrees] not to

claim an exemption for * * * [the children] for the tax year(s)

1995 TO 2013". At Mr. DiGuilio’s behest, petitioner signed both

parts of the Form 8332, and he dated it in his handwriting. The

form is complete except that it does not state petitioner’s

Social Security number in the spaces provided.

Petitioner returned to work full time in October of 1997 and

resumed filing Federal income tax returns. For the 1998 taxable

year, petitioner claimed dependency exemption deductions for the

children and a child tax credit. She attached to her return a

written statement that she had not “authorized the use of my

children * * * to be claimed as a dependant [sic] on someone’s

tax return.” Petitioner apparently had not informed Mr. DiGuilio

of her disavowal of the Form 8332. He also claimed dependency

exemption deductions for the children for the taxable year 1998

and attached the Form 8332 to his return.
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Discussion

1. Dependency Exemptions

Sections 151 and 152 provide that a taxpayer is entitled to

deduct an exemption for a minor dependent if the taxpayer

provides over half of the support for the minor dependent. In

the case of a minor dependent whose parents are divorced or

separated and together provide over half of the support for the

minor dependent, section 152(e)(1) provides that the parent

having custody for a greater portion of the calendar year

(“custodial parent”) generally shall be treated as providing over

half of the support for the minor dependent. A noncustodial

parent may be treated as providing over half of the support for

the minor dependent if the requirements of section 152(e)(2) are

satisfied. Section 152(e)(2) provides:

(2) Exception where custodial parent releases claim to
exemption for the year.–-A child * * * 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.
 - 5 -

The regulations promulgated with respect to section 152(e)

are temporary.3 Section 1.152-4T(a), Q&A-3, Temporary Income Tax

Regs., 49 Fed. Reg. 34459 (Aug. 31, 1984), provides:

A noncustodial parent may claim the 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 for the
taxable year beginning in such calendar year. The written
declaration may be made on a form to be provided by the
Service for this purpose. * * *

Pursuant to the authority granted by the regulations, the

Commissioner promulgated Form 8332. Form 8332 instructs a

taxpayer to furnish (1) the names of the children for whom

exemption claims were released, (2) the current and future years

for which the claims were released, (3) the signature of the

custodial parent confirming his or her consent, (4) the Social

Security number of the custodial parent, (5) the date of the

custodial parent’s signature, and (6) the name and Social

Security number of the parent claiming the exemption. See Miller

v. Commissioner, 114 T.C. 184, 190 (2000).

Petitioner argues that Form 8332 was not a valid release of

her claim to the dependency exemption deductions for essentially

two reasons: (1) Petitioner’s Social Security number was not

3
Temporary regulations are entitled to the same weight as
final regulations. See Peterson Marital Trust v. Commissioner,
102 T.C. 790, 797 (1994), affd. 78 F.3d 795 (2d Cir. 1996); Truck
& Equip. Corp. v. Commissioner, 98 T.C. 141, 149 (1992); see also
LeCroy Research Systems Corp. v. Commissioner, 751 F.2d 123, 127
(2d Cir. 1984), revg. on other grounds T.C. Memo. 1984-145.
 - 6 -

filled in on Form 8332, and (2) Mr. DiGuilio dated Form 8332 in

his own handwriting.

We note initially, however, that it is unclear whether

petitioner argues that she did not execute Form 8332. While she

does not deny that she executed the form and admits that the

signatures on the form “looks like my signature”, she also

testified that she would not have signed a form giving up the

right to claim dependency exemption deductions for her children

from 1995 to 2013, and she could not recall signing the form. On

the other hand, Mr. DiGuilio testified that she executed the

form. In spite of petitioner’s potential disclaimer of her

execution of Form 8332, we find that she executed the form.

To properly release a claim to a dependency exemption

deduction, section 152(e) clearly and unambiguously requires the

custodial parent to sign a written declaration with an express

statement that the custodial parent will not claim the dependency

exemption deduction. Neither the statute nor the regulations

require that the release contain the custodial parent’s Social

Security number. Furthermore, there is no requirement that the

instrument be dated by the person executing the document.

In White v. Commissioner, T.C. Memo. 1996-438, we held that

the custodial parent’s letter, attached to the noncustodial

parent’s return, was insufficient under section 152(e). The

custodial parent did not include an explicit statement that she
 - 7 -

agreed not to claim the exemption and did not state the years in

which she would release the claim to the dependency exemption

deduction. Id. While the custodial parent also did not include

her Social Security number, that omission was not a determinative

factor. We emphasized the lack of the custodial parent’s

explicit statement not to claim the dependency exemption

deduction. Id. In this case, Form 8332 includes an explicit

statement that petitioner would not claim dependency exemption

deductions for specific years.

Petitioner further argues that Form 8332 is not valid

because it was not her intent to waive the dependency exemption

deductions from 1994 to 2013. Mr. DiGuilio testified that while

the form contained the future dates from 1995 to 2013, he and

petitioner intended for him to claim the dependency exemption

deductions until petitioner began working. As to the taxable

year 1998, petitioner argues that the form was inoperative

because she had begun working.

The pre-1985 version of the allocations of the dependency

exemption deduction was “often subjective and [presented]

difficult problems of proof and substantiation”. H. Rept. 98-432

(Part II), at 1498 (1984). In order to provide more certainty,

Congress amended section 152(e) to “[allow] the custodial spouse

the exemption unless that spouse waives his or her right to claim

the exemption. Thus, dependency disputes between parents will be
 - 8 -

resolved without the involvement of the Internal Revenue

Service.” Id. at 1499.

In this case, petitioner executed the Form 8332, the

consequences of which she now attempts to avoid. If we were to

relieve her of those consequences under these circumstances, we

essentially would have to ignore the language of the statute, the

regulations, and the legislative history. The result is to

permit the whipsaw that Congress sought to prevent. For section

152(e) to operate as intended by Congress, strict adherence to

the literal requirements of section 152(e) must be observed. See

Miller v. Commissioner, supra at 196; Cafarelli v. Commissioner,

T.C. Memo 1994-265. We will not ignore the Form 8332 here.

Petitioner executed the form, and she is bound by its terms with

regard to the year before the Court.

2. Child Tax Credit

Section 24(a) provides that a taxpayer may claim a credit

for “each qualifying child”. A qualifying child is defined,

inter alia, as any individual if “the taxpayer is allowed a

deduction under section 151 with respect to such individual for

the taxable year”. Sec. 24(c)(1)(A). For the reasons stated

above, petitioner may not claim dependency exemption deductions

for the children under section 151, and, therefore, she may not

claim a child tax credit.
 - 9 -

To reflect the foregoing and respondent’s concessions,

Decision will be entered

under Rule 155.