T.C. Summary Opinion 2003-64
UNITED STATES TAX COURT
KABONGO LEONARD KALUBI, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 11760-02S. Filed May 28, 2003.
Kabongo Leonard Kalubi, pro se.
Brianna J. Basaraba, 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 $3,944 in petitioner’s
1
Unless otherwise indicated, subsequent section references are
to the Internal Revenue Code in effect for the year in issue.
- 2 -
1999 Federal income tax. The issues are whether, with respect to
petitioner’s son and daughter, petitioner is entitled to claim
(1) dependency exemption deductions, and (2) an earned income
credit (EIC). Petitioner resided in Decatur, Georgia, at the
time the petition was filed.
The facts may be summarized as follows. Petitioner and his
former wife divorced in 1998. Petitioner’s former wife was
awarded custody of their two minor children, Mbikay Kabongo (born
1990) and Kapinga Kabongo (born 1992) (collectively, the
children). The record does not contain either the divorce decree
or the custody decree. During 1999, petitioner resided in
Decatur, Georgia, and the children resided with petitioner’s
former wife in St. Louis, Missouri. Petitioner provided $336 of
monthly support for the children.
In preparing his 1999 Federal income tax return, petitioner
claimed, with respect to the children, two dependency exemption
deductions and the EIC. Respondent disallowed the dependency
exemption deductions because petitioner did not attach to his
return a written declaration executed by his former wife to waive
her right to the dependency exemptions. Respondent disallowed
the EIC because the children did not reside with petitioner for
more than 6 months in 1999.
- 3 -
Dependency Exemptions
Petitioner argues that he is entitled to claim dependency
exemption deductions with respect to his children because he has
“been paying child support for them.” Generally, sections 151
and 152 provide that a taxpayer is entitled to deduct an
exemption for a minor dependent if the taxpayer provides over
half of the support for the minor dependent. An exception exists
in the case of a minor dependent whose parents are divorced or
separated and together provide over half of the support for the
minor dependent. 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 dependent.2
A noncustodial parent, however, may be treated as providing
over half of the support for the minor dependent 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
2
An exception also exists in the case of a multiple support
agreement. Sec. 152(c). Petitioner did not provide any evidence
of a multiple support agreement.
- 4 -
(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
Regs., 49 Fed. Reg. 34459 (Aug. 31, 1984).3 Regardless of the
fact that petitioner paid monthly child support for his children,
petitioner 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. 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. 1994-114.4
3
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.
4
Sec. 7491(a), concerning burden of proof, has no bearing on
the underlying substantive issues.
- 5 -
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 for more than half of the 1999 year. We conclude
that 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.