T.C. Memo. 2011-249
UNITED STATES TAX COURT
RICHARD A. NIXON, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 220-10.1 Filed October 25, 2011.
Richard A. Nixon, pro se.
Kimberly L. Clark, for respondent.
MEMORANDUM FINDINGS OF FACT AND OPINION
VASQUEZ, Judge: Respondent determined a $3,450 deficiency
in petitioner’s Federal income tax for 2007. The issues for
decision are: (1) Whether petitioner is entitled to dependency
1
At trial the Court granted petitioner’s unopposed oral
motion to have the Court remove the small case designation.
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exemption deductions for E.N. and M.N.;2 and (2) whether
petitioner is entitled to child tax credits for E.N. and M.N.
FINDINGS OF FACT
Some of the facts have been stipulated and are so found.
The stipulations of facts and the attached exhibits are
incorporated herein by this reference. Petitioner resided in
Washington when the petition was filed.
Petitioner was formerly married to Leslie L. Nyquist (Ms.
Nyquist). They had three children, two of whom, E.N. and M.N.,
are relevant to this case. Petitioner and Ms. Nyquist were
divorced in 2002. In connection with their divorce the Superior
Court of Washington, County of Clark, entered a parenting plan
final (parenting plan) and an order of child support (support
order). The parenting plan designates Ms. Nyquist as the
custodial parent. During 2007 E.N. and M.N. were minors and
resided with Ms. Nyquist for more than one-half of the year.
The support order states that petitioner is allowed to claim
Federal income tax exemptions for E.N. for all years and M.N. for
odd-numbered years as long as he is current on his child support
2
It is the policy of the Court to refer to a minor by his
or her initials. See Rule 27(a)(3). 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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obligations.3 The support order further provides that the
custodial and noncustodial parents are to sign the Federal income
tax dependency exemption waiver. Petitioner was current on his
child support obligations during the taxable year 2007.
Petitioner claimed dependency exemption deductions and child
tax credits for E.N. and M.N. on his Form 1040, U.S. Individual
Income Tax Return, for 2007. Petitioner attached Form 8332,
Release of Claim to Exemption for Child of Divorced or Separated
Parents, to his return. Ms. Nyquist had refused to sign the Form
8332. Petitioner also attached to his Form 1040 copies of three
letters he sent to the Internal Revenue Service (IRS) stating
that for taxable year 2007 Ms. Nyquist had claimed the dependency
exemption deductions and child tax credits for E.N. and M.N. in
violation of the support order.
OPINION
I. Burden of Proof
Petitioner has neither claimed nor shown that he satisfied
the requirements of section 7491(a) to shift the burden of proof
to respondent with regard to any factual issue. Accordingly,
petitioner bears the burden of proof. See Rule 142(a).
3
The parties stipulated that petitioner is entitled to
claim dependency exemption deductions for E.N. for odd-numbered
years and M.N. for all years. The support order, however,
provides that petitioner is entitled to claim dependency
exemption deductions for E.N. every year and M.N. for odd-
numbered years. This inconsistency does not affect the outcome
of this case.
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II. 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 four
requirements for the taxpayer to be allowed the deduction. See
sec. 152(c)(1)(A)-(D). The pertinent factor here is the
residence requirement: the individual must have the same
principal place of abode as the taxpayer for more than one-half
of the taxable year.4 Sec. 152(c)(1)(B).
E.N. and M.N. resided with Ms. Nyquist for more than one-
half of the taxable year 2007. Therefore, E.N. and M.N. are not
the qualifying children of petitioner under section 152(c).
A qualifying relative must satisfy four requirements for the
taxpayer to be allowed the deduction. See sec. 152(d)(1)(A)-(D).
The two pertinent requirements here are that (1) the taxpayer
must provide over one-half of the individual’s support for the
taxable year and (2) the individual must not be a qualifying
4
Respondent does not question that petitioner meets the
relationship, age, and support requirements. See sec.
152(c)(1)(A), (C), (D).
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child of the taxpayer or of any other taxpayer for the taxable
year. Sec. 152(d)(1)(C) and (D).
Petitioner did not substantiate that he provided over one-
half of E.N.’s and M.N.’s support from all sources in 2007.
Petitioner also failed to establish that E.N. and M.N. were not
the qualifying children of any other taxpayer for 2007, e.g., Ms.
Nyquist. Accordingly, E.N. and M.N. are not petitioner’s
qualifying relatives 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), and 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 five
requirements are met. See sec. 152(e)(1) and (2). The relevant
requirements here are that the custodial parent sign a written
declaration (in such manner and form as the Secretary may
prescribe) that the custodial parent will not claim the child as
a dependent and that the noncustodial parent attach that
declaration to the noncustodial parent’s return for the taxable
year. Sec. 152(e)(2)(A) and (B).
The IRS issued Form 8332 in order to standardize the written
declaration required by section 152(e). See, e.g., Chamberlain
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v. Commissioner, T.C. Memo. 2007-178. Form 8332 requires a
taxpayer to furnish: (1) The name of the child; (2) the name and
Social Security number of the noncustodial parent claiming the
dependency exemption deduction; (3) the Social Security number of
the custodial parent; (4) the signature of the custodial parent;
(5) the date of the custodial parent’s signature; and (6) the
year(s) for which the claims were released. See Miller v.
Commissioner, 114 T.C. 184, 190 (2000). Although taxpayers are
not required to use Form 8332, any other written declaration
executed by the custodial parent must conform to the substance of
Form 8332. See id. at 189. Section 152(e) allows a noncustodial
parent to claim the dependency exemption deduction only when that
parent attaches a valid Form 8332 or its equivalent to a Federal
income tax return for the taxable year for which he or she claims
the dependency exemption deduction. See Paulson v. Commissioner,
T.C. Memo. 1996-560.
Ms. Nyquist did not sign the Form 8332 that petitioner
attached to his Form 1040. Therefore, petitioner failed to
attach a properly executed Form 8332.5
Accordingly, we find that E.N. and M.N. are not treated as
petitioner’s qualifying children or qualifying relatives under
5
Additionally, the letters petitioner attached to his Form
1040 did not constitute a written declaration conforming to the
substance of Form 8332 because none of the letters was signed by
Ms. Nyquist.
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section 152(e), and therefore petitioner is not entitled to the
dependency exemption deductions for them.
III. 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 determined that E.N. and M.N. were not
petitioner’s qualifying children, it follows that petitioner is
not entitled to the child tax credits for them.
We are not unsympathetic to petitioner’s position. We also
realize that the statutory requirements may seem to work harsh
results on taxpayers, such as petitioner, who are current in
their child support obligations and who are entitled to claim the
dependency exemption deductions or child tax credits under the
terms of a child support order. However, we are bound by the
statute as written and the accompanying regulations when
consistent therewith. Michaels v. Commissioner, 87 T.C. 1412,
1417 (1986); Brissett v. Commissioner, T.C. Memo. 2003-310.
To reflect the foregoing,
Decision will be entered
for respondent.