T.C. Summary Opinion 2003-66
UNITED STATES TAX COURT
HOWARD JONES, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 708-02S. Filed May 29, 2003.
Howard Jones, pro se.
Travis Vance III, for respondent.
POWELL, Special Trial Judge: This case was heard pursuant
to the provisions of section 74631 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.
Respondent determined a deficiency of $2,689 in petitioner’s
1
Unless otherwise indicated, subsequent section references are
to the Internal Revenue Code in effect for the year in issue.
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2000 Federal income tax. The issues are whether, with respect to
petitioner’s daughter and son, petitioner is entitled to claim
(1) dependency exemption deductions, and (2) an earned income
credit (EIC). Petitioner resided in Thomson, Georgia, at the
time the petition was filed.
The facts may be summarized as follows. Petitioner is
divorced. Petitioner’s former wife was awarded custody of their
two minor children, Ashley Jones (born 1987) and Justin Jones
(born 1992) (collectively, the children). The record does not
contain either the divorce decree or custody decree. During
2000, petitioner resided in Marathon Shores, Florida, and the
children resided with petitioner’s former wife in Thomson,
Georgia.
In preparing his 2000 Federal income tax return, petitioner
claimed two dependency exemption deductions and an EIC with
respect to the children. Respondent disallowed the dependency
exemption deductions because petitioner did not attach to his
return a written declaration executed by his former wife waiving
her right to the deductions and the EIC because the children did
not reside with petitioner for more than 6 months in 2000.
Dependency Exemptions
Sections 151 and 152 provide that a taxpayer is entitled to
deduct an exemption for a minor child if the taxpayer provides
over half of the support for the minor child. In the case of a
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minor child whose parents are divorced or separated and together
provide over half of the support for the minor child, 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
child.
A noncustodial parent, however, may be treated as providing
over half of the support for the minor child if the requirements
of section 152(e)(2) are satisfied. Section 152(e)(2) provides
that a noncustodial parent is treated as providing over half of
the support if
(A) the custodial parent signs a written declaration
* * * 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.
The Internal Revenue Service prescribed Form 8332, Release
of Claim to Exemption for Child of Divorced or Separated Parents,
as the appropriate form in which the noncustodial parent may
satisfy the written declaration requirement of section 152(e)(2).
See 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); sec. 1.152-4T(a), Q&A-3, Temporary Income Tax
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Regs., 49 Fed. Reg. 34459 (Aug 31, 1984).2 Petitioner, as a
noncustodial parent, failed to provide a Form 8332 or any other
written declaration to establish that his former wife waived her
right to the dependency exemption deductions with respect to the
children. We hold that petitioner is not entitled to the
dependency exemption deductions. See McCarthy v. Commissioner,
T.C. Memo. 1995-557; Ferguson v. Commissioner, T.C. Memo. 1994-
114.3
Earned Income Credit
Section 32(a) generally provides eligible individuals with
an EIC against their income tax liability. An “eligible
individual” is defined as an individual who has a “qualifying
child” for the taxable year. Sec. 32(c)(1)(A)(i). As relevant
herein, a “qualifying child” must satisfy a residency test. Sec.
32(c)(3)(A)(ii) provides that the “qualifying child” must have
“the same principal place of abode as the taxpayer for more than
one-half” of the taxable year.
At trial, petitioner admitted that the children did not
reside with him during the 2000 taxable year. We conclude that
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); see also
LeCroy Research Sys. Corp. v. Commissioner, 751 F.2d 123, 127 (2d
Cir. 1984), revg. on other grounds T.C. Memo. 1984-145.
3
Sec. 7491(a), concerning burden of proof, has no bearing on
the underlying substantive issues.
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petitioner is not entitled to an EIC. See Briggsdaniels v.
Commissioner, T.C. Memo. 2001-321; Brignac v. Commissioner, T.C.
Memo. 1999-387.
Reviewed and adopted as the report of the Small Tax Case
Division.
Decision will be entered
for respondent.