T.C. Summary Opinion 2004-124
UNITED STATES TAX COURT
RONALD LEWIS BOULDEN, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 9217-03S. Filed September 8, 2004.
Ronald Lewis Boulden, pro se.
James N. Beyer, for respondent.
DEAN, Special Trial Judge: This case was heard pursuant to
the provisions of section 7463 of the Internal Revenue Code in
effect at the time that the petition was filed. Unless otherwise
indicated, subsequent section references are to the Internal
Revenue Code in effect for the year in issue, and all Rule
references are to the Tax Court Rules of Practice and Procedure.
The decision to be entered is not reviewable by any other court,
and this opinion should not be cited as authority.
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Respondent determined a deficiency in petitioner's Federal
income tax of $1,398 for 2001. The issues for decision are:
(1) Whether petitioner is entitled to a dependency exemption
deduction for his daughter for 2001, and (2) whether petitioner
is entitled to a child tax credit for 2001.
Background
Some of the facts have been stipulated, and they are so
found. The stipulation of facts and the attached exhibits are
incorporated herein by this reference. Petitioner resided in New
Castle, Delaware, at the time the petition was filed.
Petitioner and Holly Sulecki (Ms. Sulecki) have a daughter,
Paige M. Sulecki (Paige). Petitioner and Ms. Sulecki were never
married to each other.
Petitioner and Ms. Sulecki lived apart at all times during
2001. Petitioner has never had custody of Paige and is
prohibited from having any contact with her. He does not know
where Paige resided during the year in issue or how much was
spent for her housing or food costs.
Through wage garnishments, petitioner pays $366 per month in
child support for Paige. Petitioner did not purchase any
clothing or gifts for Paige during 2001.
Petitioner timely filed a Federal income tax return for
2001. Petitioner claimed a dependency exemption for Paige as
well as a child tax credit. He did not attach a written
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declaration or Form 8332, Release of Claim to Exemption for Child
of Divorced or Separated Parents, executed by Ms. Sulecki.
On her 2001 Federal income tax return, Ms. Sulecki also
claimed a dependency exemption for Paige for 2001 as well as a
child and dependent care credit. Respondent disallowed
petitioner's claimed dependency exemption and child tax credit.
Discussion
Respondent's deficiency determinations in the notice of
deficiency are presumed correct, and generally petitioners bear
the burden of proving that respondent's determinations of income
tax deficiencies are incorrect. Rule 142(a); Welch v. Helvering,
290 U.S. 111, 115 (1933). As the return for 2001 was filed after
July 22, 1998, section 7491(a) is applicable. Petitioner did not
assert or present evidence or argument that he satisfied the
requirements of section 7491(a). The Court concludes that
resolution of the issues in the present case does not depend upon
who has the burden of proof.
1. Dependency Exemption Deduction
A taxpayer may be entitled to claim a dependency exemption
deduction 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.
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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.
152(a). In the case of a child of unmarried 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 than 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); King v. Commissioner, 121 T.C. 245,
250-251 (2003). 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 Child 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–-
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(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.
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
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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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
Security number of the parent claiming the exemption. Id. at
190.
In the present case, petitioner did not have custody of
Paige at all during 2001 and therefore cannot be deemed to be the
custodial parent for purposes of section 152(e). As the
noncustodial parent, petitioner is not entitled to the claimed
dependency exemption deductions 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. Sulecki. Petitioner did not attach such a
declaration or Form 8332 to his return, and accordingly he is not
entitled to the dependency exemption deduction for Paige for
2001.
Petitioner nevertheless argues that he is current in his
obligations regarding child support and that he is entitled to
the dependency exemption deductions. The Court is not
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unsympathetic to petitioner's position. However, the Court is
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 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.
2. Child Tax Credit
A taxpayer may be entitled to a credit against tax with
respect to each "qualifying child". Sec. 24(a). The plain
language of section 24 establishes a three-pronged test to
determine whether a taxpayer has a qualifying child. If one of
the qualifications is not met, the claimed child tax credit must
be disallowed. The first element of the three-pronged test
requires that a taxpayer must have been allowed a deduction for
that child under section 151. Sec. 24(c)(1)(A).
As stated supra, the Court has sustained respondent's
determination that petitioner is not entitled to a dependency
exemption deduction for Paige. Thus, petitioner fails the first
prong of the test of section 24. The Court sustains respondent's
determination regarding the child tax credit under section 24.
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Reviewed and adopted as the report of the Small Tax Case
Division.
Decision will be
entered for respondent.