                   T.C. Summary Opinion 2007-20



                      UNITED STATES TAX COURT



        MARCUS T. AND TIFFANY J. RINGGOLD, Petitioners v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 15997-05S.            Filed February 12, 2007.


     Marcus T. and Tiffany J. Ringgold, pro sese.

     Jonathan A. Neumann, for respondent.



     DEAN, Special Trial Judge:   This case was heard pursuant to

the provisions of section 7463 of the Internal Revenue Code.

Unless otherwise indicated, subsequent section references are to

the Internal Revenue Code as in effect for the year at issue, and

all Rule references are to the Tax Court Rules of Practice and

Procedure.   The decision to be entered is not reviewable by any

other court, and this opinion should not be cited as authority.
                                - 2 -

     Respondent determined for 2001 a deficiency in petitioners’

Federal income tax of $3,803.   After concessions,1 the sole issue

for decision is whether petitioners are entitled to claim a

dependency exemption deduction.

                            Background

     The stipulation of facts and the exhibits received into

evidence are incorporated herein by reference.   At the time the

petition in this case was filed, petitioners resided in Richmond,

California.

     Petitioner Marcus T. Ringgold (petitioner) and Bis-Millah

Muhammad (Ms. Muhammad) are the biological parents of NNM.2

Petitioner and Ms. Muhammad have never been married to each

other.   Petitioner and Ms. Muhammad lived apart at all times

during 2001.

     Petitioners jointly filed a Form 1040, U.S. Individual

Income Tax Return, for 2001, claiming for NNM a dependency

exemption deduction.   Respondent issued to petitioners a




     1
      Respondent concedes that petitioners are entitled to claim
for 2001: (1) Charitable contribution deductions of $8,258 on
Schedule A, Itemized Deductions, (2) business expense deductions
of $2,000 for supplies expenses on Schedule C, Profit or Loss
From Business, and (3) a depreciation deduction of $1,136 on
Schedule C. Petitioners concede that they are not entitled to
claim Schedule C business expense deductions for rent or lease
payments made in 2001.
     2
      The Court will refer to the minor child by her initials.
                                   - 3 -

statutory notice of deficiency for 2001 disallowing the claimed

deduction.

                             Discussion

     The Commissioner’s determinations are presumed correct, and

generally taxpayers bear the burden of proving otherwise.3       Rule

142(a)(1); Welch v. Helvering, 290 U.S. 111, 115 (1933).

     Section 151(c)(1) allows a taxpayer to claim an exemption

deduction for each qualifying dependent.      A child of the taxpayer

is considered a “dependent” so long as the child has not attained

the age of 19 at the close of the calendar year in which the

taxable year of the taxpayer begins and more than half the

child’s support for the taxable year was received from the

taxpayer.    Secs. 151(c)(1)(B), 152(a)(1).   The age limit is

increased to 24 if the child is a student as defined by section

151(c)(4).    Sec. 151(c)(1)(B).

     A special support test under section 152(e)(1) limits the

dependency exemption where the child’s parents live apart.

Section 152(e)(1) applies to both married parents and parents who

have never been married to each other.     King v. Commissioner, 121

T.C. 245, 251 (2003).    Section 152(e)(1) provides:



     3
      Petitioners have not raised the issue of sec. 7491(a),
which shifts the burden of proof to the Commissioner in certain
situations. This Court concludes that sec. 7491 does not apply
because petitioners have not produced any evidence that
establishes the preconditions for its application.
                               - 4 -

          SEC. 152(e) Support Test in Case of Child of Divorced
     Parents, Etc.--

               (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 subsection
          (a), as receiving over half of his support during the
          calendar year from the parent having custody for a
          greater portion of the calendar year (hereinafter in
          this subsection referred to as the “custodial parent”).

     Under the stipulation and order filed in the Superior Court

of the State of California on July 12, 2001 (order), petitioner

and Ms. Muhammad agreed that they will continue to share joint

legal custody of NNM.   The order provided that NNM will be “in

the father’s care every other Thursday after school through

Monday morning beginning July 12, 2001, and the following week

every Wednesday after school through Friday morning, beginning

July 18, 2001 and in the physical care of the mother at all

times.”
                               - 5 -

     Petitioner testified that up until the filing of the order

on July 12, 2001, NNM spent equal amounts of time with him and

Ms. Muhammad.   Petitioner’s spouse, Mrs. Ringgold, testified that

after July 12, 2001, in accordance with the order, NNM spent 35

percent of her time with petitioner and 65 percent of her time

with Ms. Muhammad.

     The record reflects that petitioner had custody over NNM for

less than 50 percent of the year in 2001.   The Court therefore

finds that petitioner is not NNM’s custodial parent.

      A noncustodial parent, however, may be treated as providing

over half of the support if the requirements under section

152(e)(2) are satisfied.   Section 152(e)(2) provides:

          (2) Exception where custodial parent releases
     claim to exemption for the year.--A child * * * shall
     be treated as having received over half of his support
     during a calendar year from the noncustodial parent
     if--

              (A) the custodial parent signs a written
          declaration (in such manner and form as the
          Secretary may by regulations prescribe) that
          such custodial parent will not claim such
          child as a dependent for any taxable year
          beginning in such calendar year, and

              (B) the noncustodial parent attaches such
          written declaration to the noncustodial
          parent’s return for the taxable year
          beginning during such calendar year.

     To release a claim to a dependency exemption deduction

properly, the custodial parent must sign a written declaration

with an express statement that such custodial parent will not
                                - 6 -

claim that child as a dependent.   Sec. 152(e)(2); Miller v.

Commissioner, 114 T.C. 184, 190-191 (2000); Bramante v.

Commissioner, T.C. Memo. 2002-228.      A validly executed Form 8332,

Release of Claim to Exemption for Child of Divorced or Separated

Parents, satisfies the written declaration requirement.      King v.

Commissioner, supra at 249; Brissett v. Commissioner, T.C. Memo.

2003-310.   There is no suggestion that Ms. Muhammad signed any

written declaration agreeing that she would not claim NNM as a

dependent for 2001.

     Petitioner testified that Ms. Muhammad had orally agreed to

allow him to claim NNM as a dependent on his return, and he had

done so from 1996 to 2001.   Petitioner apparently was allowed a

dependency exemption deduction for NNM on his returns from 1996

to 2000.    Each taxable year, however, stands on its own and must

be separately considered.    Pekar v. Commissioner, 113 T.C. 158,

166 (1999).   Respondent is not bound in any given year to allow

the same treatment permitted in a previous year.     See Lerch v.

Commissioner, 877 F.2d 624, 627 n.6 (7th Cir. 1989), affg. T.C.

Memo. 1987-295; Pekar v. Commissioner, supra at 166.

     The Court finds that petitioner is not the custodial parent

of NNM, and the exception under section 152(e)(2) does not apply.

Therefore, petitioners are not entitled to claim for 2001 a

dependency exemption deduction for NNM under section 151.
                                - 7 -

    Reviewed and adopted as the report of the Small Tax Case

Division.

    To reflect the foregoing,


                                             Decision will be entered

                                        under Rule 155.
