T.C. Summary Opinion 2010-160
UNITED STATES TAX COURT
JACK ELLIOTT ROSENSTEIN, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 336-10S. Filed October 27, 2010.
Jack Elliott Rosenstein, pro se.
John M. Janus, Anne D. Melzer, and Christopher Tyrpak
(student), for respondent.
RUWE, Judge: This case was heard pursuant to the provisions
of section 74631 of the Internal Revenue Code in effect when the
petition was filed. Pursuant to section 7463(b), the decision to
1
Unless otherwise indicated, all section references are to
the Internal Revenue Code in effect for the year at issue, and
all Rule references are to the Tax Court Rules of Practice and
Procedure.
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be entered is not reviewable by any other court, and this opinion
shall not be treated as precedent for any other case.
Respondent determined a $2,186 deficiency in petitioner’s
2007 Federal income tax and a $19.20 addition to tax under
section 6651(a)(1). Petitioner did not contest the addition to
tax. The issues for decision are: (1) Whether petitioner is
entitled to a dependency exemption deduction; (2) whether
petitioner is entitled to the child tax credit; and (3) whether
petitioner is entitled to head of household filing status.
Background
Some of the facts have been stipulated and are so found.
Petitioner resided in New York when the petition was filed.
Petitioner claimed his son, B.R.,2 as a dependent on his
2007 Federal income tax return. Petitioner also claimed a $1,000
child tax credit based on B.R. and also claimed head of household
filing status for 2007.
Petitioner is B.R.’s father and is divorced from B.R.’s
mother. During 2007 B.R. lived at petitioner’s house no more
than 104 days. For the remainder of the year B.R. resided with
his mother. Petitioner admitted that he was not B.R’s custodial
parent during 2007.
2
The Court refers to minor children by their initials. See
Rule 27(a)(3).
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Pursuant to petitioner’s 2002 judgment of divorce,
petitioner was entitled to claim B.R. as a dependent until his
ex-wife’s income reached $20,000. When her income reached
$20,000, petitioner and his ex-wife were directed by the judgment
of divorce to claim B.R. as a dependent in alternate years.
Petitioner testified that since his ex-wife never provided him
with a copy of her income tax return, petitioner “assumed” that
she was not making $20,000 per year.
Petitioner did not attach to his 2007 Federal income tax
return a Form 8332, Release of Claim to Exemption for Child of
Divorced or Separated Parents, or any other signed declaration
from B.R.’s mother stating that she would not claim B.R. as a
dependent for 2007.
Discussion
As a general rule, the Commissioner’s determinations set
forth in a notice of deficiency are presumed correct, and the
taxpayer bears the burden of proving otherwise. Rule 142(a);
Welch v. Helvering, 290 U.S. 111, 115 (1933).
Dependency Exemption Deduction
Section 151(c) allows a taxpayer to deduct an annual
exemption amount for each dependent as defined in section 152. A
dependent is either a qualifying child or a qualifying relative.
Sec. 152(a). A qualifying child for purposes of the exemption
must meet four requirements under section 152(c). One of those
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requirements is that the individual claimed as a dependent have
the same principal place of abode as the taxpayer for more than
one-half of such taxable year. B.R. did not have the same
principal place of abode as petitioner during 2007; therefore,
B.R. is not petitioner’s qualifying child under section 152(c).
Section 152(e), however, provides a special rule for the
children of divorced parents. Section 152(e)(2) provides that
the child will be treated as a qualifying child if the custodial
parent signs a written declaration that such custodial parent
will not claim the child as a dependent. In addition, the
noncustodial parent must attach the written declaration to the
noncustodial parent’s return for the taxable year. No such
declaration was made by B.R.’s mother, and no Form 8332 was
attached to petitioner’s 2007 Federal income tax return as
required by section 152(e)(2). In Miller v. Commissioner, 114
T.C. 184, 190 (2000), this Court stated that satisfying the
signature requirement is critical to the successful release of
the dependency exemption within the meaning of section 152(e)(2).
As to whether B.R. could be a qualifying relative, we find
that B.R. is not a qualifying relative of petitioner under
section 152(d) because that term requires that B.R. not be a
qualifying child of someone else and, as indicated by the facts,
B.R. is a qualifying child of his mother within the meaning of
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section 152(c). We therefore hold that petitioner is not
entitled to a dependency exemption deduction for B.R.
Child Tax Credit
Section 24(a) authorizes a tax credit with respect to each
qualifying child of the taxpayer. The term “qualifying child”
means a qualifying child of the taxpayer as defined in section
152(c) or (e) who has not attained age 17. Sec. 24(c). We have
already held that B.R. is not a qualifying child of petitioner
under either subsection (c) or (e). Therefore, petitioner is not
entitled to the child tax credit.
Head of Household Filing Status
In order to qualify as a head of household under section
2(b), an individual must maintain as his home a household which
constitutes for more than one-half of the taxable year the
principal place of abode of a “qualifying child” as defined in
section 152(c). Petitioner’s claim to head of household filing
status is based on his son, B.R. Since we have already held that
B.R. is not petitioner’s qualifying child under section 152(c),
petitioner is not entitled to head of household filing status.
We have considered all of the parties’ contentions, and, to
the extent not addressed herein, we conclude those contentions
are either without merit or unnecessary to the resolution of the
issues in this case.
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To reflect the foregoing,
Decision will be entered
for respondent.