T.C. Memo. 2003-310
UNITED STATES TAX COURT
NORMAN W. BRISSETT, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 11126-02. Filed November 7, 2003.
Norman W. Brissett, pro se.
Richard A. Stone, for respondent.
MEMORANDUM FINDINGS OF FACT AND OPINION
PANUTHOS, Chief Special Trial Judge: Respondent determined
a deficiency in petitioner’s Federal income tax of $1,568 for the
2000 taxable year. Unless otherwise indicated, section
references are to the Internal Revenue Code in effect for the
year in issue.
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The issue for decision is whether petitioner is entitled to
a deduction for dependency exemptions for his son and daughter
for the 2000 taxable year.
FINDINGS OF FACT
Some of the facts have been stipulated and are so found.
The stipulated facts and the related exhibits are incorporated
herein by this reference. At the time of filing the petition,
petitioner resided in Silver Spring, Maryland.
Petitioner was previously married to Barbara Walker Brissett
(Ms. Brissett). They have two children: (1) Jacquelynne M.
Brissett (Jacquelynne), born July 8, 1984, and (2) Dominic E.
Brissett (Dominic), born May 1, 1986. On April 13, 1994,
petitioner and Ms. Brissett entered into a “Voluntary Separation
and Property Settlement Agreement” (separation agreement), which
provided in part:
3. The parties shall have joint legal and
physical custody of the parties’ minor children, whose
primary residence shall be with Wife. * * * Husband
shall have visitation with the minor children as
follows: Every other weekend from Friday after school
until Sunday at 7:30 P.M. The parties shall
alternate/share holidays and special occasions as
follows:
(i) Husband shall have Christmas Eve each year
with the minor children and Wife shall have Christmas
Day each year with the minor children.
(ii) The parties agree to alternate year to year
Easter Day and Thanksgiving Day.
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(iii) The children’s birthdays shall be shared
each year so that both parents receive part of each
child’s birthday to celebrate the day.
(iv) The children will spend Father’s Day and
Father’s Birthday with their father and Mother’s Day
and Mother’s Birthday with their mother.
With respect to summer, Wife shall have two (2)
weeks’ vacation with the minor children during the
children’s summer vacation period each year; Husband
shall have one (1) week of vacation with the minor
children each summer. The parties agree to coordinate
their summer plans, giving due regard to which weeks
either party may wish to take a summer vacation and any
camp the children may attend.
* * * * * * *
15. * * * In 1995 and thereafter, Husband shall be
entitled to claim both children as his dependents
provided Husband is current on his child support
payments. If Husband is in arrears with regard to his
child support payments Wife shall be entitled to claim
the children as her dependents. The parties agree to
mutually execute and provide all tax forms necessary in
this regard for the other. * * *
The Circuit Court for Montgomery County, Maryland
incorporated the separation agreement in its “Judgment of
Absolute Divorce”. Petitioner and Ms. Brissett were divorced on
April 19, 1994.
Ms. Brissett had custody of Jacquelynne and Dominic for a
greater portion of 2000 than petitioner.
On his Form 1040, U.S. Individual Income Tax Return, for the
2000 taxable year, petitioner claimed a deduction for dependency
exemptions for Jacquelynne and Dominic. Petitioner did not
attach to his return a written declaration or Form 8332, Release
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of Claim to Exemption for Child of Divorced or Separated Parents,
executed by Ms. Brissett. Petitioner asked Ms. Brissett to sign
a Form 8332 for the taxable year 2000, but she refused to do so.
Respondent, in a notice of deficiency dated April 23, 2002,
disallowed the deduction for dependency exemptions for
Jacquelynne and Dominic for the 2000 taxable year.
OPINION
As the return for 2000 was filed after July 22, 1998,
section 7491(a) is applicable. Petitioner did not assert nor
present evidence or argument that he satisfied the requirements
of section 7491(a). We conclude that resolution of the issue
whether petitioner is entitled to the deduction for dependency
exemptions does not depend upon who has the burden of proof.
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, a 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.
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152(a). In the case of a child of divorced parents, if the child
is in the custody of one or both of his parents for more than
one-half of the calendar year and receives more that half his
support during that year from his parents, such child shall be
treated, for purposes of section 152, as receiving over half of
his support during the calendar year from the parent having
custody for a greater portion of the calendar year (the custodial
parent). Sec. 152(e)(1). A custodial parent may release claim
to the exemption pursuant to the provisions of section 152(e)(2),
which provides:
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.
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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.”1 Sec. 1.152-
4T(a), Q&A-3, Temporary Income Tax Regs., 49 Fed. Reg. 34459
(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
1
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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Security number of the parent claiming the exemption. Id. at
190.
In the present case, petitioner and Ms. Brissett have joint
legal and physical custody of Jacquelynne and Dominic under the
terms of the separation agreement. However, for purposes of
section 152(e), the parent having custody for a greater portion
of the calendar year–-Ms. Brissett in this case--is deemed to be
the custodial parent. Petitioner, as the noncustodial parent for
purposes of section 152(e), was not entitled to the claimed
dependency exemptions unless he complied 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.
Brissett. Petitioner did not attach such a declaration or Form
8332 to his return, and accordingly, he is not entitled to the
deduction for dependency exemptions for Jacquelynne and Dominic
for the 2000 taxable year.
Petitioner nevertheless argues that he is current in his
child support obligation and that, under the terms of the
separation agreement, he is entitled to the deduction for
dependency exemptions. 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
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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.
To reflect the foregoing,
Decision will be entered
for respondent.