T.C. Summary Opinion 2003-30
UNITED STATES TAX COURT
JEFFREY S. LINDQUIST, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 5602-01S. Filed March 27, 2003.
Jeffrey S. Lindquist, pro se.
Julia L. Wahl, for respondent.
PANUTHOS, Chief 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 $1,050 for the taxable year 1998.
The issues for decision are: (1) Whether petitioner is
entitled to a deduction for a dependency exemption for his son
and (2) whether petitioner is entitled to claim a child tax
credit.
Background
Some of the facts have been stipulated, and they are so
found. The stipulation of facts and the attached exhibits are
incorporated herein by this reference. At the time of filing the
petition herein, petitioner resided at Kane, Pennsylvania.
Petitioner was previously married to Cara Leanne Lindquist
(Ms. Lindquist). They had a child, Justin Lindquist (Justin),
born June 3, 1991. On April 22, 1996, petitioner and Ms.
Lindquist entered into a “Marital Termination Agreement”, which
provided in part:
10. Beginning in calendar year 1996, and for so
long as the child of the parties is eligible to be
claimed as a dependent/exemption for state and federal
income tax purposes, [petitioner] may claim the
parties’ son, Justin Scott Lindquist, as a
dependent/exemption. Provided that [petitioner] is
current in the child support obligation as provided for
herein, [Ms. Lindquist] shall execute any and all
documents provided to [Ms. Lindquist] by [petitioner]
as are necessary for [petitioner] to successfully claim
said child as a dependent/exemption.
Petitioner and Ms. Lindquist were divorced on June 27, 1997,
pursuant to the “Findings of Fact, Conclusions of Law, Order for
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Judgment and Judgment and Decree of Dissolution” (divorce decree)
by the District Court of the Third Judicial District for Mower
County, Minnesota (Mower County district court). Under the
divorce decree, they were granted joint legal custody of Justin,
while Ms. Lindquist was granted sole physical custody. Similar
to the “Marital Termination Agreement”, the divorce decree also
provided:
8. That beginning in calendar year 1997, and for
so long as the child of the parties is eligible to be
claimed as a dependent/exemption for state and federal
income tax purposes, [petitioner] may claim the
parties’ son, Justin Scott Lindquist, as a
dependent/exemption. Provided that [petitioner] is
current in the child support obligation as provided for
herein, [Ms. Lindquist] shall execute any and all
documents provided to [Ms. Lindquist] by [petitioner]
as are necessary for [petitioner] to successfully claim
said child as a dependent/exemption.
Petitioner filed a 1998 Federal income tax return (return).
Petitioner claimed a dependency exemption for Justin and claimed
a child tax credit in the amount of $400.1 Petitioner did not
attach to his return a written declaration executed by Ms.
Lindquist. Nor did petitioner ask Ms. Lindquist to sign a Form
8332, Release of Claim to Exemption for Child of Divorced or
Separated Parents, for the taxable year 1998 since he believed
that she would not execute the required form. Petitioner further
concluded that it would be unrealistic for him, as a resident of
1
According to respondent, Ms. Lindquist also claimed a
dependency exemption for Justin for the 1998 taxable year.
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Pennsylvania, to return to the Mower County district court in
Minnesota to seek enforcement of the terms of the divorce decree.
In the notice of deficiency, respondent disallowed the
dependency exemption deduction for Justin and disallowed the
child tax credit claimed by petitioner for the 1998 taxable year.
Discussion
1. Dependency Exemption
A taxpayer may be entitled to claim as a deduction an
exemption amount for each of his or her dependents. Sec. 151(c).
An individual must meet the following five tests in order to
qualify as a dependent of the taxpayer: (1) Support test, (2)
relationship or household test, (3) citizenship or residency
test, (4) gross income test, and (5) joint return test. Secs.
151 and 152. If the individual fails any of these tests, he or
she does not qualify as a dependent.
As to the support test, the taxpayer generally must provide
more than half of a claimed dependent’s support for the calendar
year in which the taxable year of the taxpayer begins. Sec.
152(a). In the case of a child of divorced parents, the
custodial parent is generally deemed to have furnished over half
the support of such child and is thus permitted the dependency
exemption. However, an exception arises when the custodial
parent releases claim to the exemption pursuant to the provisions
of section 152(e)(2), which provides:
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SEC. 152(e). Support Test in Case of Divorced Parents,
Etc.--
* * * * * * *
(2) Exception where custodial parent releases
claim to exemption for the year.--A child of parents *
* * 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.
For purposes of this subsection, the term “noncustodial
parent” means the parent who is not the custodial
parent.
The temporary regulations promulgated with respect to
section 152(e) provide that 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.”2 Sec. 1.152-
4T(a), Q&A-3, Temporary Income Tax Regs., 49 Fed. Reg. 34459
2
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).
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(Aug. 31, 1984); see Miller v. Commissioner, 114 T.C. 184, 188-
189 (2000), affd. on another ground sub nom. Lovejoy v.
Commissioner, 293 F.3d 1208 (10th Cir. 2002). 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. Miller v. Commissioner, supra at 189.
Form 8332 requires a taxpayer to furnish (1) the names of
the children for which exemption claims were released, (2) the
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 the Social
Security number of the parent claiming the exemption. Miller v.
Commissioner, supra at 190.
Petitioner did not comply with the provisions of section
152(e)(2) and the regulations thereunder by attaching to his
return a written declaration or Form 8332 executed by Ms.
Lindquist. Petitioner, as a noncustodial parent, is not entitled
to the dependency exemption for Justin for the 1998 taxable year.
Petitioner nevertheless argues that he is current in his
child support obligation and that, under the terms of the Marital
Termination Agreement and divorce decree, he is entitled to the
dependency exemption. He further points out that it is
unrealistic for him, as a resident of Pennsylvania, to return to
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the Mower County district court in Minnesota to seek enforcement
of the terms of the divorce decree.
We are not unsympathetic to petitioner’s position. However,
we are bound by the language of the statute as it is written and
the accompanying regulations, when consistent therewith.
Michaels v. Commissioner, 87 T.C. 1412, 1417 (1986). The
Internal Revenue Code is clear as to the precise circumstance in
which a noncustodial parent becomes entitled to a dependency
exemption. See Neal v. Commissioner, T.C. Memo 1999-97.
Respondent is sustained on this issue.
2. Child Tax Credit
A taxpayer may be entitled to claim a credit against tax
with respect to each “qualifying child”. Sec. 24(a). The term
“qualifying child” is defined, among other things, 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 is not
entitled to a dependency exemption deduction under section 151
with respect to Justin. It therefore follows that petitioner is
not entitled to a child tax credit under section 24(a).
Reviewed and adopted as the report of the Small Tax Case
Division.
To reflect the foregoing,
Decision will be entered
for respondent.