                  T.C. Summary Opinion 2007-140



                       UNITED STATES TAX COURT



               BURNICE JEROME DAVIS, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 4876-06S.               Filed August 13, 2007.



     Burnice Jerome Davis, pro se.

     Marshall R. Jones, for respondent.


     VASQUEZ, 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.
                               - 2 -

this opinion shall not be treated as precedent for any other

case.

     Respondent determined a $1,390 deficiency in petitioner’s

2003 Federal income tax.   After a concession,2 the issues

remaining for decision concerning 2003 are:   (1) Whether

petitioner is entitled to claim a dependency exemption for JJD3

pursuant to section 151(c); (2) whether petitioner is entitled to

claim a child tax credit for JJD pursuant to section 24(a); and

(3) whether petitioner is entitled to head of household filing

status pursuant to section 2(b).

                            Background

     Some of the facts have been stipulated and are so found.

The stipulation of facts and the attached exhibits are

incorporated herein by this reference.   At the time he filed the

petition, petitioner resided in Daleville, Alabama.

     On April 13, 1996, petitioner married Kimberly Jean Davis

(Ms. Davis).   Petitioner and Ms. Davis had one child together,

JJD. On April 30, 2001, petitioner and Ms. Davis divorced.

Pursuant to their divorce, Ms. Davis received physical custody of

JJD, petitioner received visitation rights, and petitioner was

required to pay child support in the amount of $434 per month.

     2
        Petitioner conceded that he was not entitled to claim a
child tax credit for his child from a previous marriage.
     3
         The Court will refer to the minor child by his initials.
                                - 3 -

JJD did not live with petitioner during 2003.    The final judgment

in the divorce proceeding ordered petitioner to pay 72 percent of

all reasonable and necessary medical, dental, eye care, hospital,

and other health care expenses incurred in the care and treatment

of JJD.

      Petitioner filed his Form 1040, U.S. Individual Income Tax

Return for 2003 as a head of household and claimed a dependency

exemption and a child tax credit for JJD.    Ms. Davis did not sign

a written declaration providing that she would not claim JJD as a

dependent in 2003.

      In the notice of deficiency, respondent determined that

petitioner was not entitled to a dependency exemption for JJD on

his 2003 tax return.    Additionally, respondent determined that

petitioner was not entitled to a child tax credit for JJD in

2003.   Finally, respondent determined that petitioner is not

entitled to file as head of household.

                             Discussion

I.   Dependency

      Generally, a taxpayer is allowed a dependency deduction for

a son or daughter if that child meets the statutory definition of

dependent.    Sec. 151(c)(1), (3).   The term “dependent” is defined

as an individual who receives over half of his support from a

taxpayer.    Sec. 152(a).
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     Section 152(e) provides the support test for a child of

divorced parents.   Under that provision, 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”). [Sec. 152(e)(1).]

     Section 152(e), however, also provides that the

“noncustodial parent” is treated as providing over half of a

child’s support if:    (1) The custodial parent signs a written

declaration that such custodial parent will not claim such child

as a dependent, and the noncustodial parent attaches such written

declaration to the noncustodial parent’s return for the taxable

year; (2) there is a multiple support agreement between the

parties as provided in section 152; or (3) there is a qualified

pre-1985 instrument.    Sec. 152(e)(2), (3), and (4); Paulson v.

Commissioner, T.C. Memo. 1996-560.      Section 152(e)(3) and (4)

does not apply in this case.
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     A noncustodial parent may claim the exemption for a child

“only if the noncustodial parent attaches to his/her income tax

return for the year of the exemption a written declaration from

the custodial parent stating that he/she will not claim the child

as a dependent for the taxable year beginning in such calendar

year.”    Sec. 1.152-4T(a), Q&A-3, Temporary Income Tax Regs., 49

Fed. Reg. 34459 (Aug. 31, 1984); see Miller v. Commissioner, 114

T.C. 184, 188-189 (2000), affd. on another ground sub nom.

Lovejoy v. Commissioner, 293 F.3d 1208 (10th Cir. 2002).     The

declaration required pursuant to section 152(e)(2) must be made

either on a completed Form 8332, Release of Claim to Exemption

for Child of Divorced or Separated Parents, or on a statement

conforming to the substance of Form 8332.    Miller v.

Commissioner, supra at 189.

     Petitioner testified that he provided more than 50 percent

of JJD’s support for 2003.    Accordingly, petitioner believes that

he is entitled to claim JJD as a dependent for the taxable year

2003.    Petitioner testified that he has given Forms 8332 to Ms.

Davis on several occasions, but she has never signed or returned

any of the Forms 8332.

     Ms. Davis had custody of JJD during 2003.   Ms. Davis did not

sign a Form 8332 or any other statement conforming to the

substance of Form 8332 for 2003.   Petitioner did not attach a

Form 8332 or any similar written statement to his 2003 return.
                                - 6 -

Accordingly, petitioner is not entitled to a dependency deduction

for JJD for 2003.

II.    Child Tax Credit

       Section 24(a) provides that a taxpayer may claim a credit

for “each qualifying child”.    A qualifying child is defined,

inter alia, as any individual if “the taxpayer is allowed a

deduction under section 151 with respect to such individual for

the taxable year”.    Sec. 24(c)(1)(A).

       We concluded that petitioner is not entitled to a dependency

deduction pursuant to section 151 for JJD for 2003.

Consequently, JJD is not a “qualifying child” pursuant to section

24(c).    Accordingly, petitioner is not entitled to a child tax

credit under section 24(a) with respect to JJD for 2003.

III.    Head of Household

       Section 2(b) defines “head of household” as an individual

taxpayer who is:    (1) Unmarried at the close of the taxable year;

and (2) maintains as his home a household which constitutes for

more than one-half of the taxable year the principal place of

abode of an unmarried son or daughter of the taxpayer.      Sec.

2(b)(1)(A)(i).

       Petitioner did not maintain a household that was the

principal place of abode for JJD for more than one-half of the

taxable year.    Petitioner did not assert that any other

qualifying children lived with him for more than one-half of the
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taxable year.   Accordingly, petitioner is not entitled to head of

household filing status.

     To reflect the foregoing,


                                              Decision will be entered

                                         for respondent.
