T.C. Summary Opinion 2005-111
UNITED STATES TAX COURT
LAWRENCE PATRICK O’BRIEN, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 2097-04S. Filed August 1, 2005.
Lawrence Patrick O’Brien, pro se.
Richard J. Hassebrock, 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
1
Unless otherwise indicated, subsequent section
references are to the Internal Revenue Code in effect for the
year in issue, and Rule references are to the Tax Court Rules of
Practice and Procedure.
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should not be cited as authority.
Respondent determined a deficiency of $2,431 in petitioner’s
2001 Federal income tax. After a concession by respondent, the
issue is whether petitioner is entitled to section 151 dependency
exemption deductions for two of his minor children. Petitioner
resided in Harrison, Ohio, at the time the petition was filed.
Background
Petitioner and Katherine E. O’Brien (Ms. O’Brien) divorced
on November 6, 1998. They are the parents of six children. At
the time of the divorce, five of the children were minors. In
the divorce decree, petitioner was designated the custodial
parent of one child, and Ms. O’Brien was designated the custodial
parent of the remaining four.
Petitioner was ordered to pay Ms. O’Brien $325 per child
each month for the four children in her physical custody. The
divorce decree further ordered that petitioner was entitled to
claim two of the minor children in Ms. O’Brien’s custody as
dependents for Federal tax purposes if his child support
obligation was current and paid in full for the year in which he
was claiming the children as dependents. Respondent does not
dispute that petitioner’s child support obligation was current
and paid in full for the year at issue.
Petitioner claimed dependency exemption deductions for three
of his children on his timely filed 2001 Form 1040, U.S.
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Individual Income Tax Return. Petitioner did not attach anything
signed by Ms. O’Brien to his return at the time he filed.
Respondent disallowed these dependency exemption deductions and
issued a notice of deficiency. Respondent has conceded that
petitioner was the custodial parent for one of the claimed
children in 2001. Petitioner was not, however, the custodial
parent of the other two children in 2001. Petitioner argues that
even though he is the noncustodial parent of these two children,
he is entitled to the dependency exemption deductions under the
terms of his divorce decree.
Discussion2
A. Dependency Exemption Deduction
Sections 151 and 152 provide that a taxpayer is entitled to
deduct an exemption for a dependent if the taxpayer provides over
half of the support for the dependent. Under section 152(e)(1),
in the case of a minor dependent whose parents are divorced,
separated under a written agreement, or who have lived apart at
all times during the last 6 months of the calendar year, and
together provide over half of the support for the minor
dependent, 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
We decide the issue in this case without regard to the
burden of proof. See Higbee v. Commissioner, 116 T.C. 438
(2001).
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Petitioner is not the custodial parent of the two children
at issue, and thus he is not entitled to the dependency exemption
deductions under section 152(e)(1). A noncustodial parent may be
entitled to the exemption if one of three exceptions in section
152(e) is satisfied. The only exception relevant to this case is
contained in section 152(e)(2). Section 152(e)(2) provides that
a child shall be treated as having received over half of his or
her support 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.
Section 1.152-4T(a), Q&A-3, Temporary Income Tax Regs., 49
Fed. Reg. 34459 (Aug. 31, 1984),3 further provides:
The written declaration may be made on a form to be
provided by the Service for this purpose. * * *
B. Written Declaration Requirement
Pursuant to the regulations, the Internal Revenue Service
issued Form 8332, Release of Claim to Exemption for Child of
Divorced or Separated Parents, as a way to satisfy the written
declaration requirement of section 152(e)(2). Form 8332
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).
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instructs the taxpayer to provide (1) the names of the children
for whom exemption claims were released, (2) the years the claims
are released, (3) the signature of the custodial parent to
confirm their consent, (4) the Social Security number of the
custodial parent, (5) the date of the custodial parent’s
signature, and (6) the name and Social Security number of the
parent claiming the exemption. If Form 8332 is not used, a
statement conforming to the substance of Form 8332 must be used.
See sec. 1.152-4T(a), Q&A-3, Temporary Income Tax Regs., supra.
Petitioner did not attach a written declaration, Internal
Revenue Service form, or other statement signed by Ms. O’Brien to
his return. See sec. 152(e)(2)(A) and (B). No such written
declaration has since been provided, and no written declaration
was provided at trial. Petitioner, therefore, has not
established his entitlement to the two dependency exemption
deductions for the year in question. See Paulson v.
Commissioner, T.C. Memo. 1996-560.
Although the divorce decree provides that petitioner is
entitled to the dependency exemption deductions, it cannot by its
own terms determine issues of Federal tax law. Commissioner v.
Tower, 327 U.S. 280 (1946); Kenfield v. United States, 783 F.2d
966 (10th Cir. 1986); Neal v. Commissioner, T.C. Memo. 1999-97;
Nieto v. Commissioner, T.C. Memo. 1992-296. When asked whether
he had pursued Ms. O’Brien’s compliance with the terms of the
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divorce decree in State court, petitioner responded he had not
because he does not want to further burden her with additional
court and attorney fees. Petitioner also testified, however,
that Ms. O’Brien will not sign a Form 8332. The Court truly
sympathizes with petitioner’s situation. Unfortunately, his
remedy in this instance is to pursue Ms. O’Brien’s compliance
with the divorce decree, and any other remedies that may make him
whole, in State court.
Reviewed and adopted as the report of the Small Tax Case
Division.
Decision will be entered
under Rule 155.