T.C. Summary Opinion 2011-5
UNITED STATES TAX COURT
MICHAEL FRED WESNER, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 15745-09S. Filed January 24, 2011.
Michael Fred Wesner, pro se.
Alicia E. Elliott, for respondent.
GERBER, 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 be entered is not reviewable by any other court,
and this opinion shall not be treated as precedent for any other
1
Unless otherwise indicated, all section references are to
the Internal Revenue Code in effect for 2007, the taxable year in
issue.
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case. Respondent determined a $2,559 income tax deficiency for
petitioner’s 2007 tax year. The deficiency is attributable to
respondent’s disallowance of a claimed dependency exemption
deduction, head of household filing status, and an earned income
tax credit. We consider whether petitioner is entitled to a
dependency exemption deduction and/or an earned income tax
credit.2
Background
Petitioner resided in Arizona at the time that his petition
was filed.3 During 2007 petitioner was married to
Polly A. Wesner, and he resided with her during the entire year.
Petitioner has a minor child from a previous marriage to
Denise S. Tokar (Ms. Tokar). On July 6, 2006, an establishment
and judgment and order (court order) regarding custody was filed
in the Arizona Superior Court, Pima County (divorce court).
Under that court order petitioner was obligated to pay monthly
child support of $229. The court order awarded petitioner the
right to claim the minor child as a “Federal tax exemption” for
the 2006 and 2007 tax years:
If * * * [petitioner] has paid in full all current
support and court ordered arrearage payments due for
the calendar year by December 31, * * *, the Federal
2
Petitioner conceded at trial that he was not entitled to
head of household filing status for his 2007 tax year.
3
The parties’ stipulation of facts and the attached exhibits
are incorporated by this reference.
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tax exemption for the minor child(ren) shall be
allocated as follows: * * * [petitioner] to claim 2006
& 2007. * * * [Ms. Tokar] to claim 2008. Three year
pattern to continue.
[Ms. Tokar] shall execute the necessary Internal
Revenue Service forms to transfer the exemption(s)
consistent with the order. Note: The exemptions are
not allocated unless the current support obligation is
greater than $1,200 per year.
Petitioner was also obligated to pay 60 percent of the minor
child’s unreimbursed medical and dental expenses. In addition to
future child support, petitioner was also ordered to pay past
care and support of $9,160 for April 1, 2003, through June 30,
2006, at the rate of $76 per month.
During 2007 petitioner paid a total of $3,687.75 to the
divorce court to satisfy his child support obligations.
Petitioner’s total monthly obligation, including a $2.25 handling
fee, was $307.25 ($229 + $76 + $2.25 = $307.25). Accordingly,
petitioner had met his total support obligation for 2007 ($307.25
x 12 = $3,687), allowing him to claim the Federal dependency
exemption deduction under the court order.
Petitioner approached Ms. Tokar, the custodial parent,
immediately after the entry of the court order and arranged an
appointment with her to execute the Internal Revenue Service
forms (tax forms) as ordered by the divorce court. Ms. Tokar did
not appear at the appointed time and failed to execute the tax
forms. After petitioner’s attempt to obtain Ms. Tokar’s
signature failed, he sought enforcement of the court order by
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service of legal process but he did not know her mailing address.
He requested Ms. Tokar’s address from the agency to which he made
the support payments, and it refused to provide her address.
Accordingly, at the time his 2007 income tax return was due,
petitioner did not have the required consent form executed by Ms.
Tokar; and his income tax return was filed without the form or
any other documentation supporting his claim for the dependency
exemption deduction.
After more than 6 months of trying to obtain Ms. Tokar’s
address, petitioner hired a process server during August 2009 to
find and serve her. By the time the matter came before the
divorce court it was too late for Ms. Tokar to sign the tax
forms. The divorce court, finding that petitioner had made
support payments for 2007 and had qualified under the court order
for the dependency exemption deduction, credited $2,559 against
petitioner’s future support payments beginning September 1, 2009.
The income tax deficiency respondent determined for 2007 was
$2,559.
Discussion
Petitioner claimed a dependency exemption deduction and
earned income tax credit for his 2007 tax year. Section 151(c)
allows an exemption for a “dependent” as defined in section 152.
Generally, to be a “qualifying child” for purposes of the
dependency exemption deduction, the child must not provide over
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one-half of the child’s own support and must have the same
principal place of abode as the taxpayer for more than one-half
of the taxable year.4 See sec. 152(c)(1)(A), (B), (D), (2)(A).
Where parents of a child live apart for the last 6 months of
a calendar year and the child receives more than one-half of the
child’s support from both parents and is in the custody of one
parent for more than one-half of the year, the child is treated
as the “qualifying child” of the custodial parent. See sec.
152(e)(1), (4)(A).
Petitioner is not the custodial parent, and we must look to
section 152(e), which provides the circumstances under which a
noncustodial parent may claim a dependency exemption deduction.
Section 152(e) sets forth three possible exceptions to the
bright-line rule that the custodial parent is entitled to the
dependency exemption deduction. The one that could be applicable
is set forth in section 152(e)(2): “The custodial parent signs a
written declaration * * * that such custodial parent will not
claim such child as a dependent * * * and * * * the noncustodial
parent attaches such written declaration to the noncustodial
parent’s return for the taxable year.”
No such document was executed and/or attached to
petitioner’s 2007 income tax return and, accordingly, petitioner
4
The child must also meet certain age requirements. Sec.
152(c)(1)(C), (3).
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does not meet the requirements of the statutory exception and is
not entitled to claim the minor child as a dependent. This is so
even though a State court with jurisdiction over the parties to a
divorce proceeding ordered that petitioner was entitled to the
dependency exemption deduction for 2007 and even though the
custodial parent had been ordered but failed to execute the
consent form required by the Federal statute. The consent form
requirement is in absolute terms and is unambiguous.
The congressional intent to relieve the Commissioner of the
administrative burden of sorting out multiple claims for the same
dependent(s) has been expressed as a bright-line rule, and
petitioner’s circumstances, although compelling, are without
remedy in the context of the Federal tax law. See Miller v.
Commissioner, 114 T.C. 184 (2000). Under section 152, even if
petitioner had attached the divorce court’s order to his 2007
income tax return, that would not have sufficed to entitle him to
the deduction because the court order, inter alia, provided only
a contingent release of the dependency exemption deduction. See
Miller v. Commissioner, supra at 192-193; Thomas v. Commissioner,
T.C. Memo. 2010-11. Finally, the fact that during 2009
petitioner received credit from the divorce court for the $2,559
income tax deficiency for 2007 is of no consequence to our
consideration of whether petitioner is entitled to claim the
minor child as a dependent for 2007.
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Section 32 permits an eligible individual an earned income
tax credit against that individual’s tax liability. An
individual without a qualifying child may be eligible for an
earned income tax credit subject to specified income limitations.
See Rev. Proc. 2006-53, sec. 3.07(1), 2006-2 C.B. 996, 1000.
However, section 32(d) provides that a married individual is
entitled to the credit only if a joint return is filed.
Petitioner’s 2007 income tax return was filed under the status
“head of household”. He now concedes that his return filing
status is married filing separately. Under those circumstances,
petitioner is not entitled to claim an earned income tax credit.
To reflect the foregoing and petitioner’s concession,
Decision will be entered
for respondent.