T.C. Summary Opinion 2006-30
UNITED STATES TAX COURT
SCOTT LYND SYMONDS, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 8819-04S. Filed February 21, 2006.
Scott Lynd Symonds, pro se.
Luanne S. DiMauro, for respondent.
GOLDBERG, Special Trial 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. The decision to be
entered is not reviewable by any other court, and this opinion
should not be cited as authority. 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 in petitioner’s Federal
income tax of $3,125 for the taxable year 2001.
The issues for decision are: (1) Whether petitioner is
entitled to claim a dependency exemption deduction for AH;1 and
(2) whether petitioner is entitled to head-of-household filing
status for taxable year 2001.
Background
Some of the facts have been stipulated and are so found.
The stipulation of facts and the attached exhibits are
incorporated herein by this reference. Petitioner resided in New
Haven, Connecticut, on the date the petition was filed in this
case.
Sometime before 1995, petitioner and Marilee Peterson (Ms.
Peterson), formerly known as Marilee Herrera, began a romantic
affair. Petitioner and Ms. Peterson never married. During the
course of their relationship, Ms. Peterson gave birth, in 1995,
to a child, AH. Sometime in 1996, petitioner and Ms. Peterson
ended their romantic affair and moved into separate residences.
Petitioner and Ms. Peterson have lived separately at all times
since their romantic relationship ended.
Because of a custody dispute between petitioner and Ms.
Peterson regarding AH, the Superior Court of the Judicial
District of New Haven, Connecticut, entered an Order on November
1
The Court uses only the minor child’s initials.
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9, 1999, resolving the custody dispute. The Order provides, in
pertinent part, as follows:
The Court orders joint legal custody of the minor child [AH]
to both the Mother [Ms. Peterson] and Father [petitioner]
with residential custody awarded to the Mother. The Court
orders all major decisions concerning the child
(educational, medical, and the like) are to be made only
after full consultation with both parents. The Father’s
visitation is to begin at 8:00 am Tuesday until 5:00 pm
Thursday. Starting next fall 2000 the Father can pick up
the minor child after school on Mondays with the same 5:00
pm Thursday drop off. Each parent is to have 2 weeks
uninterrupted in the summer alternating first choice. The
Mother gets first choice this summer 2000 and in even years
from there-on. The Court adopts Attorney Wallace’s proposed
orders with respect to Holiday visitation schedule. The
Court orders the Father to pay $98.00/week child support in
accordance with the child support guidelines. The Mother is
to maintain medical insurance for the child. The Mother is
to pay the first $100 of unreimbursed medical costs and the
Father is to pay 44% of the remaining balance of
unreimbursed medical costs. If the Mother loses or changes
employment and her medical benefits, the Father is to pick
up medical coverage through his employment if available. *
* *
Attorney Wallace’s proposed orders with respect to a holiday
visitation schedule provides, in pertinent part, as follows:
Now comes the Guardian ad Litem for the minor child and
hereby say:
1. This GAL was appointed to represent * * * [AH]. After
investigation by the GAL, the GAL respectfully requests the
following orders:
* * * * * * *
C. The following holidays will be alternated;
i. Halloween and Thanksgiving;
ii. Christmas Eve 1999 from 5 p.m. to 10 a.m.
Christmas day child will be with mother the rest
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of the day the child shall be with Father until
7:00 p.m.;
iii. On Christmas Eve 2000, the child will be
with father at the same times child was with
mother during Christmas Eve and Christmas Day of
1999 and shall alternate thereafter;
iv. Easter, Memorial Day, Labor Day, and New
Year’s Day shall be with mother, unless holiday
falls on regular scheduled time with father;
v. 4th of July with father;
vi. Father’s Day with father;
vii. Mother’s Day with mother;
viii. Each parent will have at least two weeks
vacation with child. * * *
During taxable year 2001, pursuant to the 1999 Order of the
Superior Court in New Haven, Connecticut, petitioner had physical
custody of AH from 3 p.m. on Mondays until 5 p.m. on Thursdays.
Petitioner had physical custody of AH for 3,848 hours during the
taxable year 2001. Ms. Peterson had physical custody of AH for
4,912 hours during the year at issue.
On or about April 14, 2002, petitioner filed his Form 1040,
U.S. Individual Income Tax Return, for the 2001 taxable year. In
the 2001 return, petitioner filed as a head-of-household and
claimed a dependency exemption deduction for AH. There was no
attachment regarding any waiver or declaration, such as a Form
8332, Release of Claim to Exemption for Child of Divorced or
Separated Parents, executed by Ms. Peterson stating that she was
releasing her claim to exemption of AH. Ms. Peterson did not
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sign a Form 8332 or a statement conforming to the substance of
Form 8332 for the 2001 taxable year.
Subsequently, respondent issued a notice of deficiency to
petitioner in which respondent disallowed petitioner’s claimed
dependency exemption deduction for AH and changed petitioner’s
filing status from head-of-household to single.
Discussion2
1. Deduction for Dependency Exemption
Section 151 allows as a deduction an exemption for each
dependent of the taxpayer. See sec. 151(c). Section 152(a)(1)
defines the term “dependent” to include a taxpayer’s child,
provided that more than half of the child’s support was received
from the taxpayer or is treated under section 152(e) as received
from the taxpayer.
In the case of a child whose parents have lived apart at all
times during the last 6 months of the calendar year, section
152(e)(1) provides as a general rule that the child shall be
treated as receiving over half of his or her support from the
custodial parent.
Petitioner argues that section 152(e) does not apply in the
present circumstance. Instead, he argues that section 152(a)
2
We decide the issues in this case without regard to the
burden of proof. Accordingly, we need not decide whether the
general rule of sec. 7491(a)(1) is applicable in this case. See
Higbee v. Commissioner, 116 T.C. 438 (2001).
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applies to his situation. Petitioner bases his argument on the
fact that he has never been divorced nor legally separated from
Ms. Peterson.
However, petitioner is mistaken. Section 152(e)(1)(A)(iii)
applies to any parents, regardless of marital status, where the
parents “live apart at all times during the last 6 months of the
calendar year” and, pursuant to section 152(e)(1)(B), the child
is in the custody of one parent for more than one-half of the
calendar year. King v. Commissioner, 121 T.C. 245, 250-251
(2003). Therefore, even though petitioner has never been
divorced or legally separated from or married to Ms. Peterson, on
the basis of his testimony that he lived separately from Ms.
Peterson for the entire taxable year 2001, section
152(e)(1)(A)(iii) controls here. With this proposition in mind,
we must determine whether petitioner or Ms. Peterson was the
custodial parent in taxable year 2001.
Section 1.152-4(b), Income Tax Regs., provides that custody
“will be determined by the terms of the most recent decree” if
there is one in effect. In the event of so-called split or joint
custody, “‘custody’ will be deemed to be with the parent who, as
between both parents, has the physical custody of the child for
the greater portion of the calendar year.” Id.
In the present case, the 1999 Order of the Superior Court in
New Haven, Connecticut, is the most recent pronouncement on the
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custody of AH, and it provides for joint custody with residential
custody awarded to Ms. Peterson. Further, the parties have
stipulated that Ms. Peterson had physical custody of AH for more
than half of the taxable year 2001. Therefore, Ms. Peterson was
the custodial parent in 2001, and petitioner was the noncustodial
parent.
Section 152(e)(2) provides an exception to the general rule
of section 152(e)(1). Pursuant to that exception, the child
shall be treated as receiving more than 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.
See sec. 1.152-4T(a), Q&A-3, Temporary Income Tax Regs., 49 Fed.
Reg. 34459 (Aug. 31, 1984).
The declaration required by section 152(e)(2)(A) must be
made either on Form 8332 or on a statement conforming to the
substance of that form. Miller v. Commissioner, 114 T.C. 184,
189 (2000), affd. sub nom. Lovejoy v. Commissioner, 293 F.3d 1208
(10th Cir. 2002). To meet the requirements of section 152(e)(2),
the written declaration, if not made on the official form
provided by the Internal Revenue Service (IRS), “shall conform to
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the substance of such form.” Sec. 1.152-4T(a), Q&A-3, Temporary
Income Tax Regs., supra.
In the present case, Ms. Peterson, as the custodial parent,
did not sign a Form 8332 or any written declaration or statement
agreeing not to claim the exemption for AH, and no such form,
declaration, or statement was attached to petitioner’s tax return
for the year in issue.
The law is clear that petitioner is entitled to the child
dependency exemption in 2001 only if he complied with the
provisions of section 152(e)(2). Petitioner has failed in this
regard. It follows, therefore, that the exception set forth in
section 152(e)(2) does not apply and that the general rule of
section 152(e)(1) does apply. Accordingly, petitioner is not
entitled to deduct a dependency exemption for AH for taxable year
2001. Sec. 152(e)(1); Miller v. Commissioner, supra.
Respondent’s determination on this issue is sustained.
2. Head-of-Household
As previously stated, petitioner filed his 2001 Federal
income tax return as a head-of-household, and respondent changed
the filing status to single in the notice of deficiency.
Section 1(b) imposes a special income tax rate on an
individual filing as head-of-household. Section 2(b) provides
the requirements for head-of-household filing status. As
relevant here, to qualify as a head of a household a taxpayer
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must (a) be unmarried at the end of the taxable year, (b) not be
a surviving spouse, and (c) maintain as the taxpayer’s home a
household that constitutes for more than one-half of the taxable
year the principal place of abode of a son or daughter of the
taxpayer. Sec. 2(b)(1)(A)(i).
The parties have stipulated that Ms. Peterson had physical
custody of AH for more than one-half of the year. It follows,
therefore, that petitioner is not entitled to claim head-of-
household filing status. We sustain respondent’s determination
with respect to this issue.
Furthermore, we have considered all of the other arguments
made by petitioner, and, to the extent that we have not
specifically addressed them, we conclude they are without merit.
Reviewed and adopted as the report of the Small Tax Case
Division.
Decision will be entered
for respondent.