T.C. Memo. 2010-33
UNITED STATES TAX COURT
AHMAD MISBAH SHEIKH, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 2969-08. Filed February 23, 2010.
Ahmad Misbah Sheikh, pro se.
Steven G. Cappellino and Mohammad S. Sohail (student),
for respondent.
MEMORANDUM FINDINGS OF FACT AND OPINION
VASQUEZ, Judge: Respondent determined a $4,635 deficiency
in petitioner’s Federal income tax for 2005. The issues
remaining1 for decision are whether petitioner is entitled to
1
Petitioner concedes that he is not entitled to file as a
(continued...)
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claim dependency exemption deductions and child tax credits for
his two children, M.M.S.2 and M.A.S.
Unless otherwise indicated, all section references are to
the Internal Revenue Code in effect for the year in issue, and
all Rule references are to the Tax Court Rules of Practice and
Procedure.
FINDINGS OF FACT
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
Michigan when the petition was filed.
Petitioner was married to Mymoona Fathima Syed (Ms. Syed)
until March 17, 2005. They had two children, M.M.S. and M.A.S,
who were born in 2000 and 2002, respectively. In September 2003
Ms. Syed and the children moved into the home of Ms. Syed’s
parents, Mr. Haffeez Abdul and Ms. Shahnaz Syed (maternal
grandparents), in New York. Mr. Abdul’s employer provided the
home rent free.
On March 17, 2005, petitioner and Ms. Syed signed a consent
judgment of divorce (consent judgment) in the Circuit Court,
1
(...continued)
head of household and that he is not entitled to a standard
deduction of $7,300.
2
It is the policy of the Court to identify minors only by
their initials. See Rule 27(a)(3).
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Oakland County, Michigan, Family Division. The consent judgment
provided that custody of M.M.S. and M.A.S. would be decided at a
later date by a New York court and ordered petitioner to pay
child support of $1,043 per month to Ms. Syed. The consent
judgment did not address whether petitioner or Ms. Syed was
entitled to claim the dependency exemption deductions or child
tax credits for M.M.S. and M.A.S. for Federal income tax
purposes.
On December 16, 2005, the New York Family Court, Erie
County, entered a decision and order awarding custody of M.M.S.
and M.A.S. to Ms. Syed. The decision and order did not address
whether petitioner or Ms. Syed was entitled to claim the
dependency exemption deductions or child tax credits for M.M.S.
and M.A.S. for Federal income tax purposes.
Petitioner paid child support of $12,530.62 for M.M.S. and
M.A.S. to Ms. Syed in 2005. He also paid $5,129 for medical
insurance and $674.16 for dental insurance for himself and the
children. Petitioner did not know at the time of trial the
amount of the insurance premiums attributable to coverage for the
children. On brief petitioner claims that medical insurance was
$3,420 and dental insurance was $448.10 for the children.
M.M.S. and M.A.S. lived with Ms. Syed and their maternal
grandparents in New York in 2005. The maternal grandparents
reported wage income of $11,600 on their 2005 Form 1040A, U.S.
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Individual Income Tax Return. They also claimed dependency
exemption deductions, child tax credits, and the earned income
credit for M.M.S. and M.A.S.
Petitioner reported wage income of $49,600 on his 2005 Form
1040A. He also claimed dependency exemption deductions and child
tax credits for M.M.S. and M.A.S. Respondent rejected
petitioner’s electronically filed Form 1040A because the maternal
grandparents claimed M.M.S. and M.A.S. as dependents on their
2005 Form 1040A. Petitioner, thereafter, filed a paper Form
1040A claiming the dependency exemption deductions and child tax
credits for M.M.S. and M.A.S. He did not attach Form 8332,
Release of Claim to Exemption for Child of Divorced or Separated
Parents, or its equivalent to his paper Form 1040A.
Petitioner is unaware of the amount of support the maternal
grandparents provided for M.M.S. or M.A.S. in 2005. He also is
unaware of the financial resources the maternal grandparents had
in 2005 to provide support for M.M.S. or M.A.S. He testified,
however, that the maternal grandparents “have so much excess of
money * * * they don’t have any problem”. He also testified that
in 2005 M.M.S.’ and M.A.S.’ housing, school, and transportation
were free.
OPINION
Petitioner has neither claimed nor shown that he satisfied
the requirements of section 7491(a) to shift the burden of proof
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to respondent. Accordingly, petitioner bears the burden of
proof. See Rule 142(a).
I. Dependency Exemption Deductions
Section 151(a) and (c) allows taxpayers an annual exemption
deduction for each “dependent” as defined in section 152. A
dependent is either a qualifying child or a qualifying relative.
Sec. 152(a). The requirement is disjunctive, and, accordingly,
satisfaction of either the qualifying child requirement or the
qualifying relative requirement allows the individual to be
claimed as a dependent. A qualifying child must meet the
following four statutory requirements:
• Relationship.--The individual (dependent) is the
taxpayer’s child, a descendant of the taxpayer’s child,
the taxpayer’s brother, sister, stepbrother, or
stepsister or a descendant of any such relative. Sec.
152(c)(1)(A), (2).
• Residence.--The individual has the same principal
place of abode as the taxpayer for more than one-half
of such taxable year. Sec. 152(c)(1)(B).
• Age.--The individual must not have attained the age
of 19 or must be a student who has not attained the age
of 24. Sec. 152(c)(1)(C), (3)(A).
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• Support.--The individual has not provided over
one-half of the individual’s own support.3 Sec.
152(c)(1)(D).
The parties stipulated that M.M.S. and M.A.S. resided in New
York with Ms. Syed and their maternal grandparents in 2005.
Thus, M.M.S. and M.A.S. did not have the same principal place of
abode as petitioner for more than one-half of the taxable year.
See sec. 152(c)(1)(B). Accordingly, neither M.M.S. nor M.A.S. is
petitioner’s qualifying child under section 152(c).
A qualifying relative must meet the following four statutory
requirements:
• Relationship.--The individual (dependent) is the
taxpayer’s child, a descendant of the taxpayer’s child,
the taxpayer’s brother, sister, stepbrother, or
stepsister; the taxpayer’s father or mother or an
ancestor of either, the taxpayer’s stepfather or
stepmother, a son or daughter of the taxpayer’s brother
or sister, a brother or sister of the taxpayer’s father
or mother, a son-in-law, daughter-in-law,
father-in-law, mother-in-law, brother-in-law, or
3
A taxpayer must establish the total cost of support
expended on behalf of a dependent from all sources. Sec.
1.152-1(a)(2)(i), Income Tax Regs. The term “support” includes
items such as food, shelter, clothing, medical and dental care,
education, and the like and certain Government benefits. Sec.
1.152-1(a)(2)(i) and (ii), Income Tax Regs.
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sister-in-law; or an individual (other than an
individual who at any time during the taxable year was
the taxpayer’s spouse determined without regard to
section 7703) who has the same principal place of abode
as the taxpayer and is a member of the taxpayer’s
household during the taxable year. Sec. 152(d)(1)(A),
(2).
• Gross Income.--The individual’s gross income for the
taxable year is less than the exemption amount ($3,200
for 2005). Sec. 152(d)(1)(B).
• Support.--The taxpayer provides over one-half of the
individual’s support for the taxable year. Sec.
152(d)(1)(C).
• Not a Qualifying Child.--The individual is not a
qualifying child of the taxpayer or of any other
taxpayer for the taxable year. Sec. 152(d)(1)(D).
Petitioner did not substantiate the amount of M.M.S.’ or
M.A.S.’ support from all sources in 2005. See supra note 3.
Thus, petitioner did not establish that he provided over one-half
of either child’s support for 2005. See sec. 152(d)(1)(C). In
addition, petitioner has not established that neither M.M.S. nor
M.A.S. is a qualifying child of any other taxpayer for 2005
(e.g., the maternal grandparents). See sec. 152(d)(1)(D).
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Accordingly, neither M.M.S. nor M.A.S. is petitioner’s qualifying
relative under section 152(d).
Section 152(e)(1), however, provides a special rule whereby
a noncustodial parent may be entitled to claim a dependency
exemption deduction for a child notwithstanding the residency
requirement of section 152(c)(1)(B), the support requirement of
section 152(d)(1)(C), or the so called tie-breaking rule of
section 152(c)(4). A child will be treated as the noncustodial
parent’s qualifying child or qualifying relative if the following
five statutory requirements are met.
• Support.--The child receives over one-half of child’s
support during the calendar year from the child’s
parents. Sec. 152(e)(1)(A).
• Parents.--The parents are divorced or legally
separated under a decree of divorce or separate
maintenance, are separated under a written separation
agreement, or live apart at all times during the last 6
months of the calendar year. Id.
• Custody.--The child is in the custody of one or both
parents for more than one-half of the calendar year.
Sec. 152(e)(1)(B).
• Custodial Parent Releases Claim to Exemption.--The
custodial parent signs a written declaration (in such
manner and form as the Secretary may prescribe) that
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the custodial parent will not claim the child as a
dependent for the taxable year. Sec. 152(e)(2)(A).
• Noncustodial Parent Attaches Release to Return.--The
noncustodial parent attaches the written declaration to
the noncustodial parent’s return for the taxable year.
Sec. 152(e)(2)(B).
Petitioner did not substantiate the amount of M.M.S.’ or
M.A.S.’ support from all sources in 2005. Thus, petitioner did
not establish that he and Ms. Syed provided over one-half of
their support for 2005. See sec. 152(e)(1)(A); see also Hopkins
v. Commissioner, 55 T.C. 538, 541 (1970) (taxpayer failed to show
that children received over one-half of their support from their
divorced parents; thus, section 152(e) did not apply); Frazier v.
Commissioner, T.C. Memo. 1973-21. Petitioner also did not attach
a Form 8332 or its equivalent to his return. See sec. 152(e)(2).
Accordingly, neither M.M.S. nor M.A.S. is treated as petitioner’s
qualifying child or qualifying relative under section 152(e)(2).
II. Child Tax Credits
A taxpayer may claim a child tax credit for “each qualifying
child”. Sec. 24(a). A qualifying child for purposes of section
24 is a “qualifying child” as defined in section 152(c) who has
not attained the age of 17. Sec. 24(c)(1).
Because we have concluded that neither M.M.S. nor M.A.S. is
petitioner’s qualifying child nor treated as such under section
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152(e), he is not entitled to child tax credits for them.
Respondent’s determination is sustained.
To reflect the foregoing,
Decision will be entered
for respondent.