T.C. Summary Opinion 2011-32
UNITED STATES TAX COURT
SCOTT LYND SYMONDS, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 23963-09S. Filed March 17, 2011.
Scott Lynd Symonds, pro se.
Luanne DiMauro, for respondent.
PANUTHOS, Chief Special Trial Judge: This case was heard
pursuant to the provisions of section 7463 of the Internal
Revenue Code in effect when the petition was filed.1 Pursuant to
section 7463(b), the decision to be entered is not reviewable by
1
Unless otherwise indicated, all section references are to
the Internal Revenue Code in effect for the year in issue. All
Rule references are to the Tax Court Rules of Practice and
Procedure.
- 2 -
any other court, and this opinion shall not be treated as
precedent for any other case.
Respondent determined a deficiency of $3,382 in petitioner’s
2007 Federal income tax. After concessions,2 the issues for
decision are: (1) Whether petitioner is entitled to a dependency
exemption deduction for A.S.;3 (2) whether petitioner is entitled
to head of household filing status; and (3) whether petitioner is
entitled to the additional child tax credit.
Background
Some of the facts have been stipulated, and we incorporate
the stipulation of facts and the accompanying exhibits by this
reference. Petitioner resided in Connecticut when his petition
was filed.
Petitioner and Marilee Peterson (Ms. Peterson) are the
parents of A.S. The couple never married. Petitioner and Ms.
Peterson could not resolve custody issues on their own and turned
to the superior court in New Haven, Connecticut, to resolve the
2
Respondent disallowed petitioner’s claimed earned income
credit (EIC). Petitioner did not address the disallowance of the
EIC in his petition; therefore this issue is deemed conceded.
See Rule 34(b)(4). Respondent also determined a change to
petitioner’s itemized deductions for 2007, reducing the claimed
deduction by $1. This issue was also not addressed in
petitioner’s petition and is deemed conceded. See id.
3
The Court refers to minor children by their initials. See
Rule 27(a)(3).
- 3 -
matter. An order was issued on November 9, 1999, outlining
custody of and support for A.S.
The order provides as follows. Petitioner and Ms. Peterson
have joint legal custody of A.S. and that Ms. Peterson has
residential custody.4 Petitioner’s visitation begins at 8 a.m.
on Tuesday and ends at 5 p.m. Thursday of each week. The order
further provides that petitioner was to begin picking A.S. up
after school in the fall of 2000 on Mondays with the same dropoff
time on Thursdays. Petitioner and Ms. Peterson will alternate
the holidays of Halloween, Thanksgiving, and Christmas. A.S.
will spend Easter, Memorial Day, Labor Day, and New Year’s Day
with Ms. Peterson, unless the holiday falls on regularly
scheduled time with petitioner. A.S. will spend the 4th of July
with petitioner, and each parent will have 2 weeks’ uninterrupted
vacation each summer with A.S. Mother’s Day and Father’s Day
will be spent with the appropriate parent.
The order also provides guidelines for child support as
follows. Petitioner will pay Ms. Peterson $98 a week in child
support, and Ms. Peterson will provide medical insurance for A.S.
Ms. Peterson will pay the first $100 of unreimbursed medical
costs, and petitioner will pay 44 percent of the remaining
4
We interpret “residential custody” as equating to “physical
custody”.
- 4 -
unreimbursed medical costs. The November 9, 1999, order has not
been modified.
In 2007 A.S. spent 50 percent of the time living with
petitioner and the other 50 percent living with Ms. Peterson and
her husband. Petitioner paid for A.S.’s private schooling at
Hamden Hall Country Day School in 2007 and 50 percent of A.S.’s
medical expenses in 2007. Petitioner reported $17,291 of
adjusted gross income (AGI) for 2007. Ms. Peterson was
unemployed in 2007, but her filing status and her household’s AGI
for 2007 are unknown.
Petitioner timely filed his Federal income tax return for
2007 (return). On the return petitioner claimed a dependency
exemption deduction for A.S., head of household filing status,
and the additional child tax credit. Petitioner attached to his
return neither Form 8332, Release of Claim to Exemption for Child
of Divorced or Separated Parents, nor a statement conforming to
Form 8332 signed by Ms. Peterson.
Respondent issued a notice of deficiency dated July 6, 2009,
determining a deficiency of $3,382. Respondent determined that
petitioner is not entitled to a dependency exemption deduction
for A.S., head of household filing status, or the additional
child tax credit.
- 5 -
Discussion
In general, the Commissioner’s determination set forth in a
notice of deficiency is presumed correct, and the taxpayer bears
the burden of showing that the determination is in error. Rule
142(a); Welch v. Helvering, 290 U.S. 111, 115 (1933). Deductions
are a matter of legislative grace. Deputy v. du Pont, 308 U.S.
488, 493 (1940); New Colonial Ice Co. v. Helvering, 292 U.S. 435,
440 (1934). A taxpayer bears the burden of proving entitlement
to any deduction claimed. Rule 142(a); INDOPCO, Inc. v.
Commissioner, 503 U.S. 79, 84 (1992); Welch v. Helvering, supra;
Wilson v. Commissioner, T.C. Memo. 2001-139.
Pursuant to section 7491(a), the burden of proof as to
factual matters shifts to the Commissioner under certain
circumstances. Petitioner has neither alleged that section
7491(a) applies nor established his compliance with the
substantiation and recordkeeping requirements. See sec.
7491(a)(2)(A) and (B). Petitioner therefore bears the burden of
proof. See Rule 142(a).
I. Dependency Exemption Deduction
Section 151 allows as a deduction an exemption for each
dependent of the taxpayer. Sec. 151(c). Section 152(a)(1)
defines the term “dependent” to include a qualifying child,
provided that the requirements of relationship, residency, age,
and support are met. See sec. 152(c).
- 6 -
Generally, a child who is in the custody of one or both of
the child’s parents for more than one-half of the calendar year
and receives more than one-half of his or her support from
parents who live apart at all times during the last 6 months of
the calendar year will be considered the qualifying child of the
custodial parent. Sec. 152(e)(1).
Section 1.152-4(b), Income Tax Regs., provides that custody
“will be determined by the terms of the most recent decree” if
there is one in effect. If there is no decree in effect,
“‘custody’ will be deemed to be with the parent who, as between
both parents, has the physical custody of the child for the
greater portion of the calendar year.” Id.
Section 152(e)(2) provides an exception to the rule found in
section 152(e)(1). If the noncustodial parent attaches to his or
her Federal income tax return a signed, written declaration that
the custodial parent will not claim the child for such taxable
year, the child will be considered the qualifying child of the
noncustodial parent. See sec. 152(e)(2); sec. 1.152-4T(a), Q&A-
3, Temporary Income Tax Regs., 49 Fed. Reg. 34459 (Aug. 31,
1984). The special support test of section 152(e)(1) applies to
parents who have never married each other. King v. Commissioner,
121 T.C. 245, 250 (2003).
The declaration required by section 152(e)(2)(A) must be
made either on Form 8332 or in a statement conforming to the
- 7 -
substance of that form. Miller v. Commissioner, 114 T.C. 184,
189 (2000).
We must decide which parent had custody of A.S. in 2007.
The regulations provide two legal avenues to determine custody.
First, the terms of the most recent decree in effect will
determine custody. See sec. 1.152-4(b), Income Tax Regs. The
unmodified 1999 order is still in effect and grants physical
custody to Ms. Peterson. Therefore, Ms. Peterson is the
custodial parent of A.S. The second legal avenue to determine
custody applies only if there is no decree or separation
agreement. See id. Because there is a custody order in effect,
we need not examine which parent had physical custody of A.S. for
the greater portion of 2007.
As the noncustodial parent, petitioner must attach to his
return a written declaration from Ms. Peterson stating that she
will not claim A.S. as a dependent for 2007. See sec. 152(e)(2);
sec. 1.152-4T(a), Q&A-3, Temporary Income Tax Regs., supra.
Petitioner did not attach to his return a signed, written
declaration from Ms. Peterson relinquishing her claim to A.S. as
her qualifying child for 2007. See sec. 152(e)(2); Miller v.
Commissioner, supra; sec. 1.152-4T(a), Q&A-3, Temporary Income
Tax Regs., supra.
Petitioner argues that the AGI test of section
152(c)(4)(B)(ii) should be used to determine which parent can
- 8 -
claim A.S. as a qualifying child. Petitioner’s reliance on that
clause of section 152(c)(4)(B) is misplaced, as the provisions of
section 152(e) are applicable “Notwithstanding[5] subsection * * *
(c)(4)”. Sec. 152(e)(1).
A.S. is the qualifying child and the dependent of Ms.
Peterson for 2007. Therefore, petitioner is not entitled to a
dependency exemption deduction for A.S. for 2007.
II. Head of Household Filing Status
Section 1(b) imposes a special income tax rate on an
individual taxpayer who files a Federal income tax return as a
head of household. Section 2(b) in pertinent part defines a head
of household as an individual taxpayer who: (1) Is unmarried as
of the close of the taxable year and is not a surviving spouse;
and (2) maintains as his home a household that constitutes for
more than one-half of the taxable year the principal place of
abode, as a member of such household, of a qualifying child of
the individual. See also, e.g., Rowe v. Commissioner, 128 T.C.
13, 16-17 (2007).
Since we find above that A.S. is not petitioner’s qualifying
child for 2007, petitioner is not entitled to head of household
filing status. Petitioner’s proper filing status is single for
2007.
5
The legal definition of notwithstanding is “Despite; in
spite of”. Black’s Law Dictionary 1094 (8th ed. 2004).
- 9 -
III. Additional Child Tax Credit
Section 24(a) provides a credit with respect to each
qualifying child of the taxpayer. Section 24(c)(1) defines the
term “qualifying child” as a “qualifying child of the taxpayer
(as defined in section 152(c)) who has not attained age 17.”6
The child tax credit may not exceed the taxpayer’s regular tax
liability. Sec. 24(b)(3). Where a taxpayer is eligible for the
child tax credit but the taxpayer’s regular tax liability is less
than the amount of the child tax credit potentially available
under section 24(a), section 24(d) makes a portion of the credit,
known as the additional child tax credit, refundable.
As previously discussed, A.S. was not petitioner’s
qualifying child for 2007. Therefore petitioner is not entitled
to the additional child tax credit for 2007.
Conclusion
For the reasons discussed herein, petitioner is not entitled
to a dependency exemption deduction, head of household filing
status, or the additional child tax credit for 2007.
Respondent’s determination is therefore sustained.
We have considered the parties’ arguments and, to the extent
not discussed herein, we conclude the arguments to be irrelevant,
moot, or without merit.
6
The credit is reduced by $50 for each $1,000 (or fraction
thereof) by which an individual’s modified AGI exceeds specified
amounts not relevant herein. See sec. 24(b).
- 10 -
To reflect the foregoing,
Decision will be entered
for respondent.