T.C. Summary Opinion 2004-123
UNITED STATES TAX COURT
BRIAN MONTWILLO, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 14348-03S. Filed September 7, 2004.
Brian Montwillo, pro se.
Henry E. O’Neill, for respondent.
THORNTON, Judge: This case was heard pursuant to the
provisions of section 7463 of the Internal Revenue Code in effect
at the time the petition was filed.1 The decision to be entered
is not reviewable by any other court, and this opinion should not
be cited as authority.
1
Unless otherwise indicated, all section references are to
the Internal Revenue Code in effect for the year in issue.
- 2 -
Respondent determined a $3,192 deficiency in petitioner’s
2001 Federal income tax. The issues presented are whether
petitioner can claim dependency exemption deductions, a child tax
credit, and head-of-household filing status for 2001.
Background
When he filed his petition, petitioner resided in Kapolei,
Hawaii.
Petitioner and Anita Oliver-Montwillo (Ms. Oliver-Montwillo)
were married in 1991. On June 23, 1997, they separated pursuant
to a written separation agreement and remained separated until
their divorce in 2002. They have two children (the children).
During 2001, petitioner resided in Kapolei, Hawaii, and Ms.
Oliver-Montwillo lived with her mother, Marie Oliver, in Mahopac,
New York. During 2001, Ms. Oliver-Montwillo had legal and
physical custody of the children. During 2001, petitioner paid
$8,809.40 in child support, which represented more than half the
children’s total support for that year.
Ms. Oliver-Montwillo did not waive her right to claim the
children as dependents for the 2001 tax year. Nevertheless, on
his 2001 Federal income tax return, petitioner computed his tax
using head-of-household filing status and claimed dependency
exemption deductions and a child tax credit with respect to the
- 3 -
children. Marie Oliver also claimed dependency exemption
deductions for the children on her 2001 Federal income tax return.
On May 27, 2003, respondent issued a statutory notice of
deficiency to petitioner, disallowing the dependency exemption
deductions and child tax credit, and changing his filing status
to single.
Discussion
Because we decide this case on the preponderance of the
evidence, without regard to the burden of proof, section 7491(a)
is inapplicable.
1. Dependency Exemption Deductions
A taxpayer is allowed a dependency exemption deduction for
each dependent. Sec. 151(a), (c). To qualify as a taxpayer’s
dependent, the taxpayer’s child generally must be under age 19
(age 24 if the child is a student) and receive over half of his
or her support from the taxpayer during the taxable year. Secs.
151(c)(1)(B), 152(a).
Pursuant to the provisions of section 152(e)(1), as relevant
here, the custodial parent is generally entitled to the
dependency exemption deduction, if the parents provide over half
the child’s support and the taxpayers are separated under a
written agreement. As an exception to this general rule, the
noncustodial parent may be entitled to claim the dependency
exemption deduction if (1) the custodial parent releases her
- 4 -
claim to the dependency exemption deduction by signing a written
declaration to that effect, and (2) the noncustodial parent
attaches this written declaration to his income tax return. Sec.
152(e)(2).
During 2001, Ms. Oliver-Montwillo was the custodial parent
of the children. During 2001, the children received over half
their support from their parents, who were separated under a
written separation agreement. Pursuant to section 152(e)(1),
then, Ms. Oliver-Montwillo is entitled to claim the dependency
exemption deductions for 2001. She has not released her claim to
the exemptions for 2001. Petitioner is not entitled to the
dependency exemption deductions for 2001.
2. Child Tax Credit
Section 24 allows a tax credit for each “qualifying child”
of a taxpayer. Sec. 24(a). To be a qualifying child, an
individual must, among other things, qualify as the taxpayer’s
dependent. Sec. 24(c).
As just discussed, the children do not qualify as
petitioner’s dependents. Therefore, petitioner is not entitled
to claim the child tax credit.
3. Filing Status
An individual qualifies as a head of household if, among
other things, he is not married at the close of the taxable year
and maintains a home that serves as the principal place of abode
- 5 -
for his children for more than half the taxable year. Sec.
2(b)(1).
On the basis of all the evidence, we conclude that
petitioner did not maintain a home that served as the principal
place of abode for the children for any part of 2001. We sustain
respondent’s determination that petitioner’s proper filing status
for 2001 is single.2
Decision will be entered
for respondent.
2
Respondent has not raised and we do not consider any issue
as to whether petitioner’s proper filing status for 2001 should
be married filing separately.