T.C. Summary 2003-85
UNITED STATES TAX COURT
RHONDA HOPE HAMILTON, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
RICKY DERRELL HAMILTON, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket Nos. 8101-02S, 8545-02S. Filed June 25, 2003.
Rhonda Hope Hamilton, pro se in docket No. 8101-02S.
Ricky Derrell Hamilton, pro se in docket No. 8545-02S.
Amy Dyer Seals, for respondent.
POWELL, Special Trial Judge: These consolidated cases1
were heard pursuant to the provisions of section 74632 of the
1
These cases were consolidated for purposes of trial,
briefing, and opinion because they involve common questions of
fact and law arising from the residence of petitioners’ daughter.
2
Unless otherwise indicated, subsequent section references are
to the Internal Revenue Code in effect for the year in issue.
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Internal Revenue Code in effect at the time the petitions were
filed. The decisions to be entered are not reviewable by any
other court, and this opinion should not be cited as authority.
By separate notices of deficiency respondent determined a
deficiency of $2,185 in the 1999 Federal income tax of petitioner
Rhonda Hope Hamilton (Ms. Hamilton) at docket No. 8101-02S and a
deficiency of $2,218 in the 1999 Federal income tax of petitioner
Ricky Derrell Hamilton (Mr. Hamilton) at docket No. 8545-02S.
After concessions,3 the issues are (1) whether Ms. Hamilton is
entitled to an earned income credit (EIC) with respect to Rebecca
Hope Hamilton (Rebecca), petitioners’ minor daughter; (2) whether
Ms. Hamilton is entitled to use head of household filing status;
(3) whether Mr. Hamilton is entitled to a dependency exemption
deduction with respect to Rebecca; and (4) whether Mr. Hamilton
is entitled to a child tax credit with respect to Rebecca. Ms.
Hamilton resided in Newberry, South Carolina, and Mr. Hamilton
resided in Prosperity, South Carolina, at the time the petitions
were filed.
Background
Petitioners were divorced in 1990. By a consent decree
dated November 25, 1996, the Family Court of the County of
3
Respondent conceded that Mr. Hamilton is entitled to claim a
dependency exemption deduction and a child tax credit of $500
with respect to Richard Hamilton, petitioners’ minor son, and to
the head of household filing status. As a result of these
concessions, Mr. Hamilton’s deficiency is reduced to $998.
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Newberry, State of South Carolina, entered an order awarding Ms.
Hamilton custody of Rebecca. While Ms. Hamilton had legal
custody during 1999, there are ambiguities with respect to where
Rebecca resided and the duration of Rebecca’s residence. She
spent time with both parents, and both parents contributed to her
support.
On their separate 1999 Federal income tax returns, both
petitioners claimed head of household filing status and a
dependency exemption deduction and an EIC with Rebecca as a
qualifying child. Additionally, Mr. Hamilton claimed a child tax
credit with respect to Rebecca.
In the notice of deficiency issued to Ms. Hamilton,
respondent determined that she was the custodial parent of
Rebecca and allowed her the dependency exemption deduction.
Respondent, however, disallowed Ms. Hamilton’s claimed head of
household filing status and the EIC with respect to Rebecca. As
to Mr. Hamilton, respondent disallowed the claimed dependency
exemption deduction and the child tax credit with respect to
Rebecca.
Discussion
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
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child" for the taxable year. Sec. 32(c)(1)(A)(i).4 Sec.
32(c)(3)(A)(ii) provides that a “qualifying child” must have “the
same principal place of abode as the taxpayer for more than one-
half” of the taxable year. Respondent concedes that if Rebecca
had the same principal place of abode as Ms. Hamilton for more
than one-half of 1999 then Ms. Hamilton qualifies for the EIC
with respect to Rebecca. While the evidence is perhaps less than
clear as to where Rebecca’s abode was at any given time, we
believe that her principal place of abode was with Ms. Hamilton
for more than one-half of 1999.5
Head of Household Filing Status
As relevant herein, Ms. Hamilton qualifies for head of
household filing status if she (1) was not married at the close
of the taxable year, and (2) maintained as her home “a household
which constitutes for more than one-half of such taxable year the
principal place of abode” of a daughter. Sec. 2(b)(1)(A). As
discussed above, we find that Rebecca’s principal place of abode
was with Ms. Hamilton, and Ms. Hamilton qualifies as head of a
household for 1999.
4
An eligible individual also includes an individual without a
qualifying child who meets certain criteria. See sec.
32(c)(1)(A)(ii). Respondent concedes that Ms. Hamilton is
entitled to an EIC as an individual without a qualifying child.
5
Sec. 7491(a), concerning burden of proof, has no bearing on
the underlying substantive issue.
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Dependency Exemption
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. 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. Custody is
“determined by the terms of the * * * custody decree”. Sec.
1.152-4(b), Income Tax Regs.
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:
(2) Exception where custodial parent releases claim to
exemption for the year.–-A child * * * 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.
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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).6 Mr. Hamilton failed
to provide a Form 8332 or any other documentation to establish
that Ms. Hamilton waived her right to the dependency exemption
deduction with respect to Rebecca. We hold that Mr. Hamilton is
not entitled to the dependency exemption deduction with respect
to Rebecca. See McCarthy v. Commissioner, T.C. Memo. 1995-557;
Ferguson v. Commissioner, T.C. Memo. 1994-114.
Child Tax Credit
Section 24(a) provides that a taxpayer may claim a credit
for “each qualifying child”. A qualifying child is defined,
inter alia, 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
6
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.
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above, Mr. Hamilton may not claim a dependency exemption
deduction with respect to Rebecca under section 151, and,
therefore, he may not claim the child tax credit.
Reviewed and adopted as the report of the Small Tax Case
Division.
Decisions will be entered
under Rule 155.