T.C. Summary Opinion 2003-39
UNITED STATES TAX COURT
HAROLD LEE AND MELISSA DIANE THOMAS, Petitioners v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 7007-02S. Filed April 21, 2003.
Harold Lee Thomas, pro se.
James A. Kutten, 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.
- 2 -
Respondent determined a deficiency in petitioners’ Federal
income tax of $939 for the taxable year 1998.
The issue for decision is whether petitioners are entitled
to a dependency exemption deduction and a child tax credit for a
son of petitioner husband (petitioner), Jonathan Lee Thomas
(Jonathan).1
Petitioners resided in Illinois on the date the petition was
filed in this case.
Petitioner and his former wife, Jonnie Linda Thomas (Ms.
Thomas), were divorced pursuant to a Judgment of Dissolution of
Marriage of the Circuit Court, Twentieth Judicial Circuit, St.
Clair County, Illinois, dated October 3, 1988. This judgment
provided in relevant part:
That the husband shall have the income tax deduction or
exemption for the minor child, Jonathon [sic] Thomas, and
the wife shall not claim said child on her tax returns so
long as the husband pays child support and is current
thereon.
During the entire year in issue, Jonathan resided with Ms. Thomas
in Rome, New York, and did not reside with petitioners.
1
Petitioners argue in the petition that the “IRS has
exceeded its 3-year statutory period to process any claims.”
Petitioners did not address this issue at trial, and we therefore
consider it to have been abandoned. However, we note that
petitioners’ return for taxable year 1998 was filed on or about
April 8, 1999, the statutory notice of deficiency with respect
thereto was timely issued on February 1, 2002, and the petition
in this case was timely filed. Thus, the 3-year period of
limitations on assessment and collection has not expired. Secs.
6213(a), 6501(a) and (b)(1), 6503(a)(1).
- 3 -
Petitioners filed a joint Federal income tax return for
taxable year 1998. On this return, they claimed a dependency
exemption deduction and child tax credit for Jonathan.
Petitioners did not attach to the return a written declaration
entitling them to the dependency exemption deduction. In the
statutory notice of deficiency, respondent disallowed the
deduction and credit claimed for Jonathan.
A deduction generally is allowed for each dependent of a
taxpayer under section 151. Sec. 151(a), (c)(1). As a general
rule, 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
separately 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
and who together provide over half of the child’s support. Sec.
152(e)(1). Under this rule, the parent with custody of the child
for the greater portion of the year (the “custodial parent”)
generally is treated as having provided over half of the child’s
support, regardless of which parent actually provided the
support. Id.; sec. 1.152-4(b), Income Tax Regs. An 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
- 4 -
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).
A credit generally is allowed to a taxpayer for each
qualifying child of the taxpayer. Sec. 24(a). Among other
requirements, a qualifying child is one for whom the taxpayer is
entitled to a dependency exemption deduction under section 151.
Sec. 24(c)(1)(A).
Petitioner admits that he is the noncustodial parent in this
case. Because petitioners did not attach to their return a
written declaration signed by Ms. Thomas, they are not entitled
to the dependency exemption deduction. Secs. 151 and 152.
Because they are not entitled to the deduction, they also are not
entitled to the child tax credit. Sec. 24(c)(1)(A).
Reviewed and adopted as the report of the Small Tax Case
Division.
To reflect the foregoing,
Decision will be entered
for respondent.