CRAMER v. COMMISSIONER

T.C. Summary Opinion 2003-2

UNITED STATES TAX COURT

WILLIAM R. AND DEBORAH L. CRAMER, Petitioners v.
COMMISSIONER OF INTERNAL REVENUE, Respondent

FRANK E. AND GAIL L. DUNDA, Petitioners v.
COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket Nos. 2341-02S, 2644-02S. Filed January 9, 2003.

Frank E. and Gail L. Dunda, pro sese.

William R. and Deborah L. Cramer, pro sese.

Erin K. Huss, for respondent.

WOLFE, Special Trial Judge: These consolidated cases were

heard pursuant to the provisions of section 7463 of the Internal

Revenue Code in effect at the time that the petitions were filed.

The decisions to be entered are not reviewable by any other

court, and this opinion should not be cited as authority. Unless
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otherwise indicated, all section references are to the Internal

Revenue Code in effect for the taxable years in issue, and all

Rule references are to the Tax Court Rules of Practice and

Procedure.

Respondent determined a deficiency of $1,516 in the 1998

Federal income tax of Frank E. and Gail L. Dunda and a deficiency

of $1,610 in the 1998 Federal income tax of William R. and

Deborah L. Cramer. The issue for decision is which couple is

entitled to dependency exemption deductions for 1998 for two

children of petitioner Frank E. Dunda (Dunda) and petitioner

Deborah L. Cramer (Cramer), formerly Deborah L. Dunda, during

their former marriage. Some of the facts in each case have been

stipulated and are so found.

When Dunda and his wife filed their petition and their

amended petition, they resided in Glendale, Arizona. When Cramer

and her husband filed their petition and their amended petition,

they resided in Peoria, Arizona. The Court consolidated these

cases for purposes of trial, briefing, and opinion because they

involve common questions of fact and law arising from the

separation and divorce of petitioners Dunda and Cramer.

Dunda and Cramer divorced on June 6, 1988, pursuant to the

Decree of Dissolution of Marriage (divorce decree) issued by the

Superior Court of the State of Arizona in and for the County of

Maricopa (divorce court). The divorce decree incorporated the
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provisions of the Shared Custody Agreement (custody agreement)

executed by Cramer on May 12, 1988, and by Dunda on June 6, 1988.

Pursuant to the divorce decree, Dunda and Cramer share

custody of their children: Melissa J. Dunda, born on June 3,

1980; Charles E. Dunda, born on September 14, 1984 (Charles); and

Daniel F. Dunda, born on October 29, 1987 (Daniel). The divorce

decree designates Cramer’s home as the children’s primary

residence and orders Dunda to pay Cramer $800 per month in child

support. Paragraph 14 of the divorce decree states that “Father

shall be entitled to claim the three children as dependents for

income tax purposes”. Dunda and his attorney appeared before the

divorce court, but neither Dunda nor his attorney signed the

divorce decree. Neither Cramer nor her attorney appeared before

the divorce court, but they both signed the divorce decree on the

last page, to indicate their approval “as to form and content”.

Subsequently, the divorce court issued an order, filed

November 29, 1995, decreasing Dunda’s child support obligation to

$718 per month (child support order). Paragraph T of the child

support order stated:

The Obligor has a child support obligation of at least
$1,200 per year. If Obligor has paid at least that
amount in full during the calendar year and all support
due for the calendar year, as well as any court ordered
arrearage payments due for the calendar year by
December 31, or if by order of assignment, by January
15 of the following year, the federal tax exemption for
minor children is allocated as follows: as previously
ordered. Obligee shall execute the necessary Internal
Revenue Service forms to transfer the exemption(s)
consistent with this Order.
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The order was effective September 1, 1995.

Charles and Daniel lived with Cramer for most of 1998. On

their 1998 joint Federal income tax return (the Dundas’ return),

Dunda and his wife claimed dependency exemption deductions for

both Charles and Daniel. The Dundas attached a copy of the last

page of the divorce decree to their tax return for 1998, but they

failed to attach to that tax return a copy of IRS Form 8332,

Release of Claim to Exemption for Child of Divorced or Separated

Parents. On their 1998 joint Federal income tax return (the

Cramers’ return), Cramer and her husband also claimed dependency

exemption deductions for Charles and Daniel.

Dunda and his wife, and Cramer and her husband, each

received a Notice of Deficiency. The notices disallowed the

deductions for the dependency exemptions claimed for Charles and

Daniel.

Generally, section 151(c)(1) allows a taxpayer to deduct an

exemption amount for each child of the taxpayer who is a

dependent as defined in section 152. Under section 152(a), the

term “dependent” means certain individuals over half of whose

support was received from the taxpayer during the calendar year

for which such individuals are claimed as dependents. Eligible

individuals who may be claimed as dependents include, among

others, the sons and daughters of the taxpayer. Sec. 152(a)(1).

Special rules establish which parent may claim a minor child as a
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dependent where the parents are divorced or separated. See sec.

152(e).

Generally, if a child’s parents are divorced, the child is

in the custody of one or both for the year, and the parents

provide over half of the child’s support, the custodial parent

(the parent with custody for the greatest portion of the year) is

treated as having provided over half of the child’s support for

the year, and that parent may deduct the exemption amount with

respect to such child for the year. Sec. 152(e)(1). The

applicable regulations provide that “In the event of so-called

‘split’ custody, * * * ‘custody’ will be deemed to be with the

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.

The “noncustodial parent”, however, may claim the child as a

dependent if the custodial parent signs a written declaration

that such custodial parent will not claim such child as a

dependent, and the noncustodial parent attaches such written

declaration to the noncustodial parent’s return for the taxable

year. Sec. 152(e)(2). The declaration required under section

152(e)(2) must be made either on a completed Form 8332, or on a

statement conforming to the substance of Form 8332. See sec.

1.152-4T(a), Q&A-3, Temporary Income Tax Regs., 49 Fed. Reg.
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34459 (Aug. 31, 1984).1

For a noncustodial parent to satisfy the written declaration

requirement of section 152(e)(2), the custodial parent is

required to provide the following on Form 8332, or a statement

conforming to the substance of Form 8332: (1) The names of the

children with respect to whom the exemptions are released; (2)

the years for which the claims to exemptions are released to the

noncustodial parent; (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. Miller v. Commissioner, 114 T.C.

184, 190 (2000), affd. on another ground sub nom. Lovejoy v.

Commissioner, 293 F.3d 1208 (10th Cir. 2002). Satisfying the

signature requirement is critical to the successful release of

the dependency exemption within the meaning of section 152(e)(2).

Id.; see Horn v. Commissioner, T.C. Memo. 2002-290; Neal v.

Commissioner, T.C. Memo. 1999-97. In addition, “the signature of

the custodial parent must confirm the custodial parent’s

intention to release the dependency exemption to the noncustodial

1
Temporary regulations are entitled to the same weight as
final regulations. 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).
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parent and signify her agreement not to claim the dependency

exemption herself.” Miller v. Commissioner, supra at 193

(emphasis added).

Because Charles and Daniel lived with Cramer for the

majority of the 1998 year, Cramer is the custodial parent.

Accordingly, Cramer is entitled to claim the children as

dependents unless she expressly releases the dependency

exemptions to Dunda, the noncustodial parent. Dunda contends

that, although Cramer did not execute a Form 8332, Cramer’s

signature on the divorce decree attached to the Dundas’ return

satisfies the requirements of a statement conforming to the

substance of Form 8332. We disagree. Dunda’s attaching a copy

of the divorce decree to his tax return does not satisfy the

requirements of section 152(e)(2) and does not conform to the

substance of Form 8332. See Miller v. Commissioner, supra at

191; see also Loffer v. Commissioner, T.C. Memo. 2002-298

(holding that attaching a copy of the divorce decree, which

included a signature of the custodial parent but no specification

of the child claimed as a dependent or of the year, did not

conform to the substance of Form 8332).

Cramer’s signature on the last page of the divorce decree,

executed by her several weeks prior to the court hearing in that

matter in 1988, does not indicate Cramer’s intent to release the

dependency exemptions for 1998 on a tax return prepared more than

10 years later. At trial, Dunda not only stated that he did not
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attach a completed Form 8332 to his 1998 tax return, but he also

testified that he believed Cramer would have refused to sign a

Form 8332. Cramer’s direct testimony that she “wouldn’t have

signed” confirmed that she had no intention of releasing the

dependency exemptions for 1998.2 The Cramers’ return, on which

Cramer claimed the dependency exemptions for Charles and Daniel

for 1998, further confirms that she did not intend to release the

dependency exemptions for that year.

Moreover, the last page of the divorce decree fails to

specify the names of the children for which the exemption claims

would be released, the year for which the exemption claims would

be released, and Cramer’s Social Security number. See Miller v.

Commissioner, supra at 190; see also Loffer v. Commissioner,

supra; Horn v. Commissioner, supra (holding that a handwritten

note did not conform to the substance of Form 8332 in part

because the note failed to identify the specific years to which

it was meant to apply); White v. Commissioner, T.C. Memo. 1996-

438 (holding that a letter purporting to release the dependency

exemptions and signed by the custodial parent taxpayer did not

2
Cramer contends that, pursuant to the child support
order, Dunda is not entitled to the exemption deductions because
Dunda allegedly was in arrears on his child support payments. We
do not address the question whether Dunda was precluded from
claiming the dependency exemptions because his child support
payments were in arrears. Cramer’s testimony, regardless of the
validity of her contention, clearly indicates that she had no
intention of releasing the dependency exemptions to Dunda in
1998.
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conform to the substance of Form 8332 in part because it failed

to include the years for which the exemption claims would be

released and the Social Security numbers of either parent);

Cafarelli v. Commissioner, T.C. Memo. 1994-265 (holding that the

Form 8332 was not an effective release of the custodial parent’s

dependency exemption in part because the noncustodial parent did

not specify the year for which the exemption claims would be

released).

The copy of the last page of the divorce decree that the

Dundas attached to their 1998 return plainly is not an effective

release of Cramer’s claim to dependency exemption deductions for

1998.

Dunda contends that he relied on a publication provided by

the Internal Revenue Service indicating that Form 8332 was

unnecessary and that the copy of the divorce decree granting him

the right to claim the dependency exemption deductions was

sufficient. Well-established precedent, however, states that

taxpayers rely on such publications at their peril. Miller v.

Commissioner, supra at 195. Administrative guidance contained in

IRS publications is not binding on the Government, nor can it

change the plain meaning of the tax statutes. Id. (citing

Johnson v. Commissioner, 620 F.2d 153, 155 (7th Cir. 1980), affg.

T.C. Memo. 1978-426; Adler v. Commissioner, 330 F.2d 91, 93 (9th

Cir. 1964), affg. T.C. Memo. 1963-196)). The authoritative
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sources of Federal Tax law are the statutes, regulations, and

judicial decisions; they do not include informal IRS

publications. See Zimmerman v. Commissioner, 71 T.C. 367, 371

(1978), affd. 614 F.2d 1294 (2d Cir. 1979). Accordingly, Dunda

may not rely on the IRS publication he reviewed as the reason he

failed to attach to his 1998 return a properly completed and

signed Form 8332 or a statement conforming to the substance of

Form 8332.

Because Dunda did not satisfy the requirements of section

152(e)(2), he and his wife are not entitled to claim the

dependency exemption deductions with respect to Charles and

Daniel for 1998. Because Cramer is the custodial parent and

Cramer did not expressly release the dependency exemptions with

respect to Charles and Daniel for 1998, Cramer and her husband

are entitled to deduct the dependency exemptions for Charles and

Daniel for 1998.

Reviewed and adopted as the report of the Small Tax Case

Division.

To reflect the foregoing,

Decision will be entered
for petitioners in docket No.
2341-02S.
Decision will be entered

for respondent in docket No.

2644-02S.