                         T.C. Memo. 1997-228



                       UNITED STATES TAX COURT



                 MICHAEL G. CORREALE, Petitioner v.
            COMMISSIONER OF INTERNAL REVENUE, Respondent



       Docket No. 26760-95.                      Filed May 13, 1997.



       Michael G. Correale, pro se.

       Janet J. Johnson, for respondent.


                         MEMORANDUM OPINION


       CARLUZZO, Special Trial Judge:   This case was heard pursuant

to the provisions of section 7443A(b)(3) and Rules 180, 181, and

182.    Unless otherwise indicated, all section references are to

the Internal Revenue Code in effect for 1994.     All Rule

references are to the Tax Court Rules of Practice and Procedure.
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Respondent determined a deficiency in petitioner's 1994 Federal

income tax in the amount of $1,193.

     The issue for decision is whether petitioner is entitled to

dependency exemption deductions for two of his four children

listed as dependents on his 1994 Federal income tax return.    The

resolution of this issue depends upon whether petitioner was

legally separated from his spouse under a decree of separate

maintenance as of the close of 1994.

Background

     The case was submitted fully stipulated.   The stipulated

facts are incorporated in our findings by this reference.    At the

time that the petition was filed in this case, petitioner resided

in Fairview Heights, Illinois.

     On August 9, 1974, petitioner married Pamela M. Correale

(Mrs. Correale).   There were four children born of the marriage:

Natalyne, Christian, Michael, and Robert.   During 1994

petitioner, Mrs. Correale, and their four children resided

together at 9 Metcalf Drive, Belleville, Illinois, (the marital

residence) from January through August.   Petitioner paid all of

the mortgage and insurance expenses of the marital residence and

contributed more than one half of the support of all four of his

children for 1994.

     In May 1994 petitioner and Mrs. Correale petitioned the

Circuit Court of the Twentieth Judicial Circuit in St. Clair
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County, Illinois, (the circuit court) for dissolution of their

marriage pursuant to 750 Ill. Comp. Stat. Ann. 5/401 (West 1996

Supp.).   On August 24, 1994, in response to some type of

application for relief filed by Mrs. Correale, the circuit court

issued an order (the interim order) which at least:    (1) Required

petitioner to vacate the marital premises by August 31 and

granted exclusive possession of the premises to Mrs. Correale;

(2) awarded temporary custody of Michael and Robert to Mrs.

Correale; (3) awarded temporary custody of Natalyne and Christian

to petitioner; and (4) established visitation rights with respect

to the children.

     Pursuant to the interim order, petitioner and Mrs. Correale

maintained separate residences from September through December

1994; however, as of the close of that year, they had not entered

into a written separation agreement and they had not yet been

divorced.    During the last 4 months of 1994, physical custody of

the children was consistent with the mandates of the interim

order.    On November 28, 1995, the circuit court entered a

Judgment of Dissolution of Marriage dissolving the marriage.    As

of the date of trial in this case, certain custody matters

remained in dispute.

     On his 1994 Federal income tax return, petitioner claimed

dependency exemption deductions for Michael, Robert, Natalyne,

and Christian.   Mrs. Correale did not sign a written declaration
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that she would not claim dependency exemption deductions for

Michael and Robert on her 1994 Federal income tax return.

     In the notice of deficiency respondent disallowed the

dependency exemption deductions claimed for Michael and Robert

explaining that petitioner failed to establish that he provided

more than one half of their total support.

Discussion

     Respondent argues that her adjustments should be sustained

because petitioner, as the noncustodial parent of Michael and

Robert, is precluded from claiming dependency exemption

deductions for those children pursuant to section 152(e)(1),

which states:

     (1) Custodial parent gets exemption. Except as
     otherwise provided in this subsection, if--

          (A) a child (as defined in section
     151(c)(3))receives over half of his support during the
     calendar year from his parents--

                (i) who are divorced or legally
                separated under a decree of divorce
                or separate maintenance,

                (ii) who are separated under a
                written separation agreement, or

                (iii) who live apart at all times
                during the last 6 months of the
                calendar year, and

          (B) such child is in the custody of one or
          both of his parents for more than one-half of
          the calendar year,

     such child shall be treated, for purposes of section
     (a), as receiving over half of his support during the
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     calendar year from the parent having custody for a
     greater portion of the calendar year (hereinafter
     referred to as the "custodial parent").

Petitioner argues that he was not legally separated as of the

close of 1994 and therefore section 152(e)(1) does not apply.

According to petitioner he has satisfied the provisions of

sections 151(c) and 152(a) and is entitled to dependency

exemption deductions for Michael and Robert.   Respondent

apparently agrees that, but for the application of section

152(e)(1), petitioner is entitled to the deductions here in

dispute.

     As of the close of 1994, petitioner and Mrs. Correale

(1) were not divorced, (2) were not separated under a written

separation agreement, and (3) had not lived apart at all times

during the last 6 months of the year.   Consequently, the

application of section 152(e)(1) depends upon whether as of the

close of 1994 petitioner and Mrs. Correale were legally separated

under a decree of separate maintenance.   In turn, this

determination depends upon whether the interim order constitutes

a decree of separate maintenance that rendered petitioner legally

separated within the meaning of section 152(e)(1)(A)(i).

Respondent argues that it does; petitioner disagrees.     For the

following reasons, we agree with petitioner.

     Petitioner's marital status as of the close of 1994 is

determined by Illinois law.   Deyoe v. Commissioner, 66 T.C. 904,
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913 (1976); Muracca v. Commissioner, T.C. Memo. 1980-91.     In that

State legal separations are specifically and exclusively provided

by statute.    Brand v. Brand, 53 Ill. App. 2d 190, 192-193, 203

N.E.2d 4 (1964).   An action for a legal separation is distinct

from an action for a divorce.    Compare 750 Ill. Comp. Stat. Ann.

5/401 (West 1996 Supp.), entitled "Dissolution of marriage" to

750 Ill. Comp. Stat. Ann. 5/402 (West 1993), entitled "Legal

separation".   See Petta v. Petta, 321 Ill. App. 512, 53 N.E.2d

324 (1944).

     In Illinois a decree issued in connection with an action

filed under 750 Ill. Comp. Stat. Ann 5/402 no doubt would

constitute a decree of separate maintenance that legally

separates a husband and a wife within the meaning of section

152(e)(1)(A)(i), but petitioner and Mrs. Correale were not

involved in such an action.    They were involved in an action

filed pursuant to 750 Ill. Comp. Stat. Ann. 5/401 (West 1996

Supp.), the object of which was to obtain the divorce that was

subsequently granted.

     Because neither petitioner nor Mrs. Correale instituted an

action against the other in 1994 for a legal separation under 750

Ill. Comp. Stat. Ann 5/402 (West 1993), pursuant to Illinois law

they could not have been legally separated as of the close of

that year.    The interim order issued in connection with their

divorce proceeding did not render them legally separated.    See
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Dunn v. Commissioner, 70 T.C. 361 (1978), affd. without published

opinion 601 F.2d 599 (7th Cir. 1979) (holding, under similar

circumstances, that the taxpayer could not file as a single

individual because a temporary order issued in connection with a

divorce proceeding did not render the taxpayer legally separated

in a State that specifically provided by statute for legal

separations).

     As of the close of 1994, petitioner (1) was not divorced or

legally separated from Mrs. Correale, (2) was not separated from

Mrs. Correale pursuant to a written separation agreement, and (3)

did not live apart from Mrs. Correale at all times during the

last 6 months of that year.   Consequently section 152(e) is not

applicable.   There being no dispute that petitioner has satisfied

all of the other requirements necessary for the deductions under

sections 151 and 152, see INDOPCO, Inc. v. Commissioner, 503 U.S.

79, 84 (1992); New Colonial Ice Co. v.   Helvering, 292 U.S. 435,

440 (1934), it follows, and we therefore hold, that petitioner is

entitled to the dependency exemption deductions here in dispute.

     Because of our holding we need not address petitioner's

contention that he was not the noncustodial parent of Michael and

Robert.

     To reflect the foregoing,

                                              Decision will be

                                         entered for petitioner.
