T.C. Summary Opinion 2011-65
UNITED STATES TAX COURT
KEVIN DEAN CHAFFEE, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 10847-09S. Filed June 1, 2011.
Kevin Dean Chaffee, pro se.
Rachael J. Zepeda, for respondent.
GERBER, 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 any other court, and
1
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.
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this opinion shall not be treated as precedent for any other
case.
Respondent determined a $3,700 deficiency in petitioner’s
2007 Federal income tax due solely to the disallowance of two
dependency exemption deductions and related child tax credits.
Background2
Petitioner resided in Arizona at the time his petition was
filed. He had two children, GC and AC-A, and married GC’s
mother, Kimberly Ann Chaffee (Ms. Chaffee), on January 31, 2001.3
Petitioner and Ms. Chaffee resided together with GC in 2007 until
petitioner and Ms. Chaffee separated on August 24, 2007. When
they separated, Ms. Chaffee took GC and moved into a separate
residence. Petitioner and Ms. Chaffee divorced on June 12, 2008.
Petitioner shared custody of AC-A in 2007 with her mother,
Mercedes Lopez (Ms. Lopez), pursuant to an order issued by the
Superior Court of Arizona, Pima County. The order also stated
that petitioner “shall be entitled to claim * * * [AC-A] as a
dependent for federal and state income tax purposes for tax year
1997 and thereafter”. Petitioner and Ms. Lopez were never
married.
2
The stipulation of facts and the attached exhibits are
incorporated herein by this reference.
3
The Court uses initials to refer to minor children. See
Rule 27(a)(3).
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Petitioner timely filed a Form 1040, U.S. Individual Income
Tax Return, for 2007 as married filing separately. He claimed
dependency exemption deductions and child tax credits for GC and
AC-A. Petitioner did not attach a Form 8332, Release of Claim to
Exemption for Child of Divorced or Separated Parents, to his
return. Ms. Chaffee and Ms. Lopez also claimed dependency
exemption deductions for GC and AC-A, respectively, for 2007.
Discussion
In general the Commissioner’s determinations are presumed
correct, and the taxpayers bear the burden of showing that the
determinations are in error. Rule 142(a); Welch v. Helvering,
290 U.S. 111, 115 (1933). Deductions and credits are a matter of
legislative grace, and taxpayers bear the burden of proving
entitlement to any deduction or credit claimed on a return. See
INDOPCO, Inc. v. Commissioner, 503 U.S. 79, 84 (1992); Wilson v.
Commissioner, T.C. Memo. 2001-139.
I. Dependency Exemptions
A. GC
Section 151(c) allows a deduction for an exemption for each
dependent. As relevant here, a dependent must be a qualifying
child that meets the relationship, residency, age, and support
requirements of section 152(c). Sec. 152(a)(1). If both parents
claim the same child as a qualifying child on separate Federal
income tax returns, the child is treated as the qualifying child
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of the parent with whom the child resided for the longer period
during the year. Sec. 152(c)(4)(B)(i).
Petitioner contends that he had equal custody of GC in
2007,4 but he has not offered evidence sufficient to corroborate
that assertion. To the contrary, respondent provided a log kept
by Ms. Chaffee which indicated that petitioner had custody for
only 22 out of the 129 days after petitioner and Ms. Chaffee
separated. Although petitioner has shown that Ms. Chaffee’s log
failed to account for 3 days for which he had custody, he still
falls far short of establishing that he had equal custody of GC
in 2007. He is thus not entitled to a dependency exemption
deduction for GC.
B. AC-A
For divorced parents, section 152(e)(1) and (2) provides
that a child will be treated as a qualifying child of the
noncustodial parent if the custodial parent signs a written
declaration that she will not claim the child as a dependent and
the noncustodial parent attaches that declaration to his tax
return. The declaration must be made either on Form 8332 or in a
statement conforming to the substance of that form. Miller v.
4
Respondent concedes that GC is the qualifying child of both
petitioner and Ms. Chaffee and that if petitioner and Ms. Chaffee
had equal custody of GC, petitioner would be entitled to the
dependency exemption deduction for GC because his adjusted gross
income for 2007 was greater than Ms. Chaffee’s. See sec.
152(c)(4)(B)(ii).
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Commissioner, 114 T.C. 184, 189 (2000); Neal v. Commissioner,
T.C. Memo. 1999-97. Section 152(e)(1) also applies to parents
who are not married. King v. Commissioner, 121 T.C. 245, 250
(2003).
Although petitioner and Ms. Lopez shared joint custody of
AC-A, petitioner does not dispute that Ms. Lopez had primary,
physical custody of AC-A and was therefore the custodial parent.
Petitioner claims he did not attach a Form 8332 to his tax return
because Ms. Lopez refused to sign one. Instead, he included a
copy of the superior court’s order with his tax return.
Unfortunately, that order cannot be considered the equivalent of
a Form 8332. See Miller v. Commissioner, supra; Neal v.
Commissioner, supra. Petitioner is therefore not entitled to a
dependency exemption deduction for AC-A.
II. Child Tax Credits
Section 24(a) provides for a “credit against the tax * * *
for the taxable year 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.” Because we have concluded
that GC and AC-A are not qualifying children under section 152,
they are also not qualifying children for purposes of section 24.
We therefore hold that petitioner is not entitled to the claimed
child tax credits.
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To reflect the foregoing,
Decision will be entered
for respondent.