T.C. Summary Opinion 2005-152
UNITED STATES TAX COURT
JAMES M. MELTON, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 7880-04S. Filed October 17, 2005.
Timothy G. Patterson, for petitioner.
Bradley C. Plovan, 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
should not be cited as authority.
1
Unless otherwise indicated, subsequent section
references are to the Internal Revenue Code in effect for the
year in issue.
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Respondent determined a deficiency of $2,195 in petitioner’s
2001 Federal income tax. The issues are whether petitioner is
entitled to a section 151 dependency exemption deduction for two
children and a section 24 child tax credit for one child. At the
time the petition was filed petitioner resided in Baltimore,
Maryland.
Background
The facts are stipulated. Petitioner was married to Brenda
Sue Melton, and they are the parents of two children. In 1990
they were divorced. The Judgment of Divorce provided that the
parties are granted “the permanent joint care and custody of
* * * [the children] subject to the following arrangements”.
Petitioner would have custody of the children beginning on
Saturday morning through the end of the school day on Monday
except for the second weekend of each month. Petitioner had “the
right to visit with and have the children with him every
Wednesday morning until the end of the school day”. The children
would spend approximately one-half of their time with each parent
on major holidays. Petitioner would have the children the first
2 weeks of July and August of each year. With respect to taxes,
petitioner would be “entitled to the Federal and State tax
deductions attributed to the children * * * so long as his
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support payments entitle him to same under IRS guidelines.” The
judgment was approved by the attorneys for the parties. Brenda
Sue Melton did not sign the judgment.
On his 2001 Federal income tax return petitioner claimed
dependency exemption deductions for both children and a child tax
credit for one child. Respondent disallowed the dependency
exemption deductions and the child tax credit.
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.
Petitioner contends that he is the custodial parent. He
argues that in computing which parent had greater custodial time,
the time set forth in the Judgment of Divorce should be
2
We decide the issues in this case without regard to the
burden of proof. See Higbee v. Commissioner, 116 T.C. 438
(2001).
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considered his time and then one-half of the remaining time is
his custodial time. We disagree. We believe that the former
wife had custody during the times not specifically set forth in
the judgment. Petitioner is not the custodial parent and 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. * * *
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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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
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 Miller v. Commissioner, 114 T.C. 184 (2000); 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 the custodial
parent to his return. See sec. 152(e)(2)(A) and (B).
Petitioner, therefore, did not establish entitlement to the
dependency exemption deductions for the year in question. See
Paulson v. Commissioner, T.C. Memo. 1996-560.
Although the Judgment of Divorce provides that petitioner
may be entitled to the dependency exemption deduction, it cannot
by its own terms determine issues of Federal tax law. See
Commissioner v. Tower, 327 U.S. 280 (1946); Kenfield v. United
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States, 783 F.2d 966 (10th Cir. 1986); Neal v. Commissioner, T.C.
Memo. 1999-97; Nieto v. Commissioner, T.C. Memo. 1992-296.
Petitioner’s remedy is to enforce the former wife’s compliance
with an order from the State court.
B. Child Tax Credit
Section 24(a) provides that a taxpayer may claim a child tax
credit for “each qualifying child”. As relevant here, a
qualifying child is defined as an 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). Petitioner
did not establish entitlement to a dependency exemption deduction
under section 151; therefore, he is not entitled to claim the
child tax credit.
Reviewed and adopted as the report of the Small Tax Case
Division.
Decision will be entered
for respondent.