T.C. Memo. 2008-194
UNITED STATES TAX COURT
TIM WALKER, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 1949-07. Filed August 18, 2008.
Tim Walker, pro se.
John D. Davis, for respondent.
MEMORANDUM OPINION
COHEN, Judge: Respondent determined a deficiency of $1,800
in petitioner’s Federal income tax for 2005. The issue for
decision is whether petitioner is entitled to a dependency
exemption deduction and a child tax credit for the year in issue.
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Unless otherwise indicated, all section references are to the
Internal Revenue Code in effect for the year in issue.
Background
Some of the facts have been stipulated, and the stipulated
facts are incorporated in our findings by this reference.
Petitioner resided in Washington at the time that his petition
was filed.
Petitioner has two daughters, both of whom lived with their
mother, and not petitioner, in 2005. An order of child support,
dated April 20, 1995, provides that petitioner is to claim one
daughter, A, for Federal income tax purposes, and the mother is
to claim the other daughter, C. The order also states that the
parents are to sign a Federal income tax dependency exemption
waiver (either a Form 8332, Release of Claim to Exemption for
Child of Divorced or Separated Parents, or a written declaration
conforming to the substance of Form 8332). Petitioner paid child
support during 2005. Petitioner, however, claimed a dependency
exemption deduction for C on his 2005 Federal income tax return
and did not acquire a signed dependency exemption waiver from C’s
mother. Therefore no Form 8332, or its equivalent, was attached
to petitioner’s 2005 return.
The Internal Revenue Service sent a notice of deficiency to
petitioner for 2005, disallowing the dependency exemption on the
grounds that petitioner did not establish his entitlement to the
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exemption. As a result, C was determined not to be a qualifying
child for petitioner, and the corresponding child tax credit was
disallowed.
Discussion
Our statement of background facts is sparse because there is
no evidence explaining the context in which the child support
paid by petitioner was ordered. However, respondent does not
dispute that C is petitioner’s child, petitioner is living apart
from C’s mother, and more than one-half of C’s support came from
her parents in 2005. Also, in view of our conclusion, we need
not address the inconsistency of the stipulated order for child
support and petitioner’s claim of C, rather than A, as a
dependent.
The Internal Revenue Code allows as a deduction an exemption
for each dependent of a taxpayer in computing taxable income.
Sec. 151(c). A child of a taxpayer generally qualifies as a
dependent if the child shares the same principal place of abode
as the taxpayer for more than one-half of the tax year in issue.
Sec. 152(a), (c). However, section 152(e)(1) limits the
dependency exemption where the child’s parents live apart, as
follows:
SEC. 152(e). Special Rule for Divorced Parents, Etc.--
(1) In general. * * * if--
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(A) a child receives over one-half of the
child’s support during the calendar year from the
child’s parents--
(i) who are divorced or legally
separated under a decree of divorce or
separate maintenance,
(ii) who are separated under a written
separation agreement, or
(iii) who live apart at all times
during the last 6 months of the calendar
year, and--
(B) such child is in the custody of 1 or
both of the child’s parents for more than one-half
of the calendar year, such child shall be treated
as being the qualifying child or qualifying
relative of the noncustodial parent for a calendar
year if the requirements described in paragraph
(2) or (3) are met.
Petitioner is not the custodial parent of his child C. His
entitlement to the deduction (and related child tax credit)
depends on the applicability of section 152(e)(2), which
provides:
(2) Exception where custodial parent releases
claim to exemption for the year.--For purposes of
paragraph (1), the requirements described in this
paragraph are met with respect to any calendar year
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.
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The form prescribed for the waiver described in section
152(e)(2) is Form 8332, which must be executed by the custodial
parent and attached to the Federal income tax return of the
noncustodial parent in order for the noncustodial parent to
receive the dependency exemption. Miller v. Commissioner, 114
T.C. 184, 190-191 (2000), affd. sub nom. Lovejoy v. Commissioner,
293 F.3d 1208 (10th Cir. 2002). Petitioner did not obtain a Form
8332 executed by the mother of his children and, as a result,
could not attach this required form to his 2005 Federal income
tax return. Petitioner is therefore not entitled to the
dependency exemption under section 152(e)(2).
Section 24(a) authorizes a child tax credit with respect to
each qualifying child of the taxpayer. The term “qualifying
child”, for purposes of the child tax credit, means a qualifying
child as defined in section 152(c) who has not attained age 17.
Sec. 24(c)(1). Because petitioner did not establish that C was a
qualifying child under either section 152(c) or the exception of
section 152(e)(2), he does not satisfy the “qualifying child”
requirement of the child tax credit under section 24. Thus, he
is not entitled to the child tax credit claimed with respect to C
for the year in issue.
In reaching our decision, we have considered all arguments
made, and, to the extent not mentioned, we conclude that they are
irrelevant, moot, or without merit.
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To reflect the foregoing,
Decision will be entered for
respondent.