T.C. Summary Opinion 2006-97
UNITED STATES TAX COURT
PAUL W. AND DEBBIE K. COLOZZA, Petitioners v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 11748-04S. Filed June 27, 2006.
Paul W. Colozza, pro se.
Charles M. Berlau, for respondent.
COUVILLION, Special Trial Judge: This case was heard
pursuant to section 7463 in effect when 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, section references hereafter
are to the Internal Revenue Code in effect for the year at issue.
All Rule references are to the Tax Court Rules of Practice and
Procedure.
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Respondent determined a deficiency of $1,047 in petitioners’
Federal income tax for 2001.
The sole issue for decision is whether petitioners are
entitled to a dependency exemption deduction under section 151
for their 2001 tax year for a child of Paul W. Colozza
(petitioner) from a prior marriage.
Some of the facts were stipulated, and those facts, with the
annexed exhibits, are so found and are incorporated herein by
reference. At the time their petition was filed, petitioners’
legal residence was Kansas City, Missouri.
Petitioner was previously married to Janice Lee Henderson
(Mrs. Henderson). One child was born of that marriage.
Petitioner and Mrs. Henderson were later divorced prior to the
year at issue. The divorce decree provided that the child’s
primary residence was with Mrs. Henderson. In 1999, the State
court in which they were divorced issued a judgment modifying the
divorce decree with regard to petitioner’s support obligations
for the child. That modification, as it pertains to the issue
before this Court, provided:
That FATHER is awarded the tax exemption each year
beginning in calendar year 1999 for the child if he makes
his ordered child support (both current and arrearage)
payments for that year, and MOTHER shall sign IRS Form 8332
or any other necessary documents by January 31 of the
following year to ensure that FATHER receives the exemption.
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There is no issue or claim that petitioner did not support the
child for the year 2001 in accordance with the court decree.
Prior to filing his joint Federal income tax return for 2001 with
his current spouse, petitioner contacted his former spouse to
obtain her consent on Form 8332, Release of Claim to Exemption
for Child of Divorced or Separated Parents, in order to enable
him and his current spouse (a petitioner herein) to claim the
dependency exemption for the child. Petitioner’s former spouse
refused to sign the Form 8332. Petitioners, accordingly, filed
their joint return for 2001 and claimed the child as a dependent.
Petitioners attached to their return an unsigned Form 8332 and
also attached the pertinent page or pages of the court’s decree
quoted above regarding petitioner’s entitlement to the dependency
exemption deduction for the child. Respondent disallowed the
claimed dependency exemption on the ground that petitioners “did
not establish” that they were entitled to the deduction.
Generally, the determinations of the Commissioner in a
notice of deficiency are presumed correct, and the burden of
proof is on the taxpayer to prove that the determinations are in
error. Rule 142(a); Welch v. Helvering, 290 U.S. 111 (1933).2
2
Since the issue in this case is legal in nature, sec. 7491,
which in some circumstances shifts the burden of proof to
respondent, is not applicable here.
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Section 151(c) allows taxpayers to deduct an annual
exemption amount for each “dependent” as defined in section 152.
Under section 152(a), the term “dependent” means certain
individuals, such as a son, daughter, stepson, or stepdaughter,
“over half of whose support, for the calendar year in which the
taxable year of the taxpayer begins, was received from the
taxpayer (or is treated under subsection (c) or (e) as received
from the taxpayer)”.
The support test in section 152(e)(1) applies if: (1) A
child receives over half of his support during the calendar year
from his parents; (2) the parents are divorced under a decree of
divorce; and (3) such child is in the custody of one or both of
his parents for more than one-half of the calendar year. If
these requirements are satisfied, as in the present case, the
“child shall be treated, for purposes of subsection (a), as
receiving over half of his support during the calendar year from
the parent having custody for a greater portion of the calendar
year (* * * referred to as the ‘custodial parent’)”, thus
allowing the dependency exemption to be claimed by the “custodial
parent”. Sec. 152(e)(1).
To decide who has custody, section 1.152-4(b), Income Tax
Regs., provides that custody “will be determined by the terms of
the most recent decree of divorce” if there is one in effect.
Since petitioner’s divorce decree declares that the primary
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residence of the child was with the former spouse, she is
considered the child’s “custodial parent” under section 152(e).
Petitioner, as the “noncustodial parent”, is allowed to
claim a child as a dependent only if one of three statutory
exceptions is met. Under these exceptions, the noncustodial
parent is treated as providing over half of a child’s support
and, therefore, entitled to the dependency exemption if, as
pertains to this case: “(A) The custodial parent signs a
written declaration that such custodial parent will not claim
such child as a dependent”, and “(B) the noncustodial parent
attaches such written declaration to the noncustodial parent’s
return for the taxable year”. Sec. 152(e)(2). The two other
situations in which petitioner could have claimed the exemption
are not applicable to this case.
With respect to the provisions of section 152(e) and the
pertinent portion of section 152(e)(2) described above, in order
for the noncustodial spouse to claim the dependency exemption
deduction, it is specifically required that the custodial parent
sign “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”. Pursuant to
this statutory provision, temporary regulations were promulgated
that provide: “The written declaration may be made on a form to
be provided by the Service for this purpose. Once the Service
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has released the form, any declaration made other than on the
official form shall conform to the substance of such form.” Sec.
1.152-4T(a), Q&A-3, Temporary Income Tax Regs., 49 Fed. Reg.
34459 (Aug. 31, 1984).3 Form 8332 requires the (1) name of the
children for which exemption claims were released, (2) years for
which the claims were released, (3) signature of the custodial
parent, (4) Social Security number of the custodial parent,
(5) date of signature, and (6) name and Social Security number of
the parent claiming the exemption.
Petitioner argued at trial that the documentation he
attached to his income tax return conformed to the substance of
Form 8332. The Court disagrees. There is no statement from the
former spouse as to the year or years in which the dependency
exemption is released, nor does the information submitted with
petitioner’s income tax return include the Social Security number
of his former spouse, and, most importantly, there is no signed
statement by the former spouse that she would not claim the
dependency exemption deduction. In fact, the parties at trial
3
The Court notes that temporary regulations have binding
effect and are entitled to the same weight as final regulations.
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); see LeCroy Research Sys.
Corp. v. Commissioner, 751 F.2d 123, 127 (2d Cir. 1984), revg. on
other grounds T.C. Memo. 1984-145.
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acknowledged that petitioner’s former spouse had claimed the
child as a dependent on her income tax return for 2001.
Although petitioner’s divorce decree provides that he is
entitled to the dependency exemption deduction for the child,
State courts, by their decisions, cannot 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); Nieto
v. Commissioner, T.C. Memo. 1992-296. Thus, the Court concludes
that, pursuant to section 152(e), petitioner is not entitled to
claim his child as a dependent for 2001. His recourse, if any,
lies in the State court for enforcement of the divorce decree.
Reviewed and adopted as the report of the Small Tax Case
Division.
Decision will be entered
for respondent.