T.C. Summary Opinion 2003-9
UNITED STATES TAX COURT
WILLIAM ALLEN GILBERT, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 239-01S. Filed February 6, 2003.
William Allen Gilbert, pro se.
Robert A. Varra, 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.
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Respondent determined a deficiency in petitioner’s Federal
income tax of $2,740 for the taxable year 1998.
The issues for decision are: (1) Whether petitioner is
entitled to a dependency exemption deduction for his daughter;
(2) whether petitioner is entitled to head of household filing
status; and (3) whether petitioner is entitled to an earned
income credit.
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
Colorado on the date the petition was filed in this case.
Petitioner and his former wife, Denise Lillian Gilbert, were
divorced in 1997. Petitioner’s former wife was granted sole
legal custody of their minor daughter, Alexis. The final orders
issued by the District Court, Routt County, Colorado, provided in
relevant part:
Because Husband [petitioner] is providing 100% of the
financial support for Alexis, I am awarding Husband the
entire dependency exemption for Alexis for 1997 and all
future years. Husband shall be entitled to claim this
exemption, however, only if he is current in paying all
child support for the tax year for which the exemption is
claimed and if claiming the exemptions provides him with a
tax benefit. If either condition is not satisfied, Wife may
claim an exemption for Alexis for that tax year.
During 1998, petitioner lived in Colorado while Alexis lived with
petitioner’s former wife in Louisiana. Petitioner visited the
Louisiana residence for approximately 3 months during 1998, but
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Alexis never resided in Colorado during that year. Petitioner
earned $10,078 in wage income during 1998.
Petitioner filed a Federal income tax return for taxable
year 1998. On this return, he claimed a dependency exemption
deduction for Alexis, he claimed head of household filing status,
and he claimed an earned income credit with Alexis as a
qualifying child. Petitioner’s return stated that Alexis lived
with petitioner for 12 months during 1998. In the statutory
notice of deficiency, respondent disallowed the dependency
exemption deduction, changed petitioner’s filing status to
single, and disallowed in full the earned income credit.
The first issue for decision is whether petitioner is
entitled to a dependency exemption deduction for his daughter. 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”)
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generally is treated as having provided over half of the child’s
support, regardless of which parent actually provided the
support. Id. One exception to this special rule exists which
entitles the noncustodial parent to the dependency exemption
deduction. Sec. 152(e)(2). 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. Id. Language
in a divorce decree purportedly giving a taxpayer the right to an
exemption deduction does not entitle the taxpayer to the
deduction in the absence of the signed, written declaration
required by the statute. Miller v. Commissioner, 114 T.C. 184
(2000), affd. sub nom. Lovejoy v. Commissioner, 293 F. 3d 1208
(10th Cir. 2002).
Petitioner admits that he is the noncustodial parent in this
case. Because petitioner did not attach to his return a written
declaration signed by his former wife, he is not entitled to the
dependency exemption deduction. Secs. 151 and 152. We note
that we do not question petitioner’s support of Alexis; whether
or not he supported her, the declaration must be attached to the
return. Id.
Petitioner nevertheless argues that he is entitled to the
deduction pursuant to the filing instructions issued by the
Internal Revenue Service. Petitioner points to a flowchart on
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what is apparently page 28 of the 1998 version of IRS Publication
17, Your Federal Income Tax.1 This chart states in relevant part
that a noncustodial parent passes the support test if “there is a
decree or agreement executed after 1984 that unconditionally
entitles the noncustodial parent to the exemption” (emphasis
added). On the following page of this publication, the listed
requirements pertaining to a noncustodial parent explicitly state
that such a post-1984 decree or agreement must state that “the
noncustodial parent can claim the child as a dependent without
regard to any condition, such as payment of support.” The
publication further states that, in order to use such a decree or
agreement in claiming an exemption deduction, the taxpayer must
attach to his or her return a copy of certain pages of the decree
or agreement which contains the signature of the taxpayer’s
former spouse. Petitioner did not attach to his return a copy of
the relevant portions of his divorce decree. Furthermore,
attaching the decree to the return would not have been sufficient
because the decree by its terms did not unconditionally entitle
petitioner to the exemption deduction: The decree provided that
entitlement to the deduction was contingent upon petitioner’s
prompt payment of child support.2
1
A copy of the flowchart is in evidence. The Court takes
judicial notice of the publication in its entirety.
2
We note that--even if the instructions upon which
(continued...)
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The second issue for decision is whether petitioner is
entitled to head of household filing status. For a taxpayer to
be entitled to head of household filing status for a given
taxable year, the taxpayer must at a minimum maintain “as his
home a household which constitutes for more than one-half of such
taxable year the principal place of abode” of a minor child or
other qualifying dependent. Sec. 2(b)(1). Alexis was the only
dependent claimed by petitioner. Because Alexis never resided
with petitioner in his home during 1998, petitioner is not
entitled to head of household filing status. Id.
The third issue for decision is whether petitioner is
entitled to an earned income credit. Under section 32, an
eligible individual is allowed a credit which is calculated as a
percentage of the individual’s earned income, subject to certain
limitations. Sec. 32(a)(1). Any individual with a qualifying
child is an eligible individual. Sec. 32(c)(1)(A)(i). An
individual with qualifying children is entitled to a larger
credit than is an individual without qualifying children. Sec.
32(a) and (b). Subject to further requirements, the definition
of a qualifying child for purposes of section 32 includes a child
2
(...continued)
petitioner relied were incorrect or misleading--the Commissioner
is not bound by guidance he provides to assist taxpayers in
filing tax returns where such guidance is contrary to the law.
Dixon v. United States, 381 U.S. 68 (1965); Automobile Club v.
Commissioner, 353 U.S. 180 (1957).
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of a taxpayer who has the same principal place of abode as the
taxpayer for more than half of the taxable year. Sec.
32(c)(3)(A)(ii). Petitioner claimed Alexis as a qualifying
child. Alexis was not a qualifying child for petitioner,
however, because she did not have the same principal place of
abode as petitioner for more than half of 1998. Petitioner is
not entitled to an earned income credit in 1998 because he had no
qualifying children and because his earned income was too great
to otherwise be entitled to the credit. Sec. 32(a),
(c)(3)(A)(ii).
Reviewed and adopted as the report of the Small Tax Case
Division.
To reflect the foregoing,
Decision will be entered
for respondent.