                  T.C. Summary Opinion 2004-124



                     UNITED STATES TAX COURT



               RONALD LEWIS BOULDEN, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 9217-03S.              Filed September 8, 2004.


     Ronald Lewis Boulden, pro se.

     James N. Beyer, for respondent.



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

the provisions of section 7463 of the Internal Revenue Code in

effect at the time that the petition was filed.   Unless otherwise

indicated, subsequent 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.

The decision to be entered is not reviewable by any other court,

and this opinion should not be cited as authority.
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     Respondent determined a deficiency in petitioner's Federal

income tax of $1,398 for 2001.    The issues for decision are:

(1) Whether petitioner is entitled to a dependency exemption

deduction for his daughter for 2001, and (2) whether petitioner

is entitled to a child tax credit for 2001.

                              Background

     Some of the facts have been stipulated, and they are so

found.    The stipulation of facts and the attached exhibits are

incorporated herein by this reference.     Petitioner resided in New

Castle, Delaware, at the time the petition was filed.

     Petitioner and Holly Sulecki (Ms. Sulecki) have a daughter,

Paige M. Sulecki (Paige).    Petitioner and Ms. Sulecki were never

married to each other.

     Petitioner and Ms. Sulecki lived apart at all times during

2001.    Petitioner has never had custody of Paige and is

prohibited from having any contact with her.    He does not know

where Paige resided during the year in issue or how much was

spent for her housing or food costs.

     Through wage garnishments, petitioner pays $366 per month in

child support for Paige.    Petitioner did not purchase any

clothing or gifts for Paige during 2001.

     Petitioner timely filed a Federal income tax return for

2001.    Petitioner claimed a dependency exemption for Paige as

well as a child tax credit.    He did not attach a written
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declaration or Form 8332, Release of Claim to Exemption for Child

of Divorced or Separated Parents, executed by Ms. Sulecki.

      On her 2001 Federal income tax return, Ms. Sulecki also

claimed a dependency exemption for Paige for 2001 as well as a

child and dependent care credit.      Respondent disallowed

petitioner's claimed dependency exemption and child tax credit.

                            Discussion

      Respondent's deficiency determinations in the notice of

deficiency are presumed correct, and generally petitioners bear

the burden of proving that respondent's determinations of income

tax deficiencies are incorrect.    Rule 142(a); Welch v. Helvering,

290 U.S. 111, 115 (1933).   As the return for 2001 was filed after

July 22, 1998, section 7491(a) is applicable.     Petitioner did not

assert or present evidence or argument that he satisfied the

requirements of section 7491(a).   The Court concludes that

resolution of the issues in the present case does not depend upon

who has the burden of proof.

1.   Dependency Exemption Deduction

      A taxpayer may be entitled to claim a dependency exemption

deduction for each of his or her dependents.      Sec. 151(c).

An individual must meet the following five tests in order to

qualify as a dependent of the taxpayer:      (1) Support test,

(2) relationship or household test, (3) citizenship or residency

test, (4) gross income test, and (5) joint return test.       Secs.
                                - 4 -

151 and 152.    If the individual fails any of these tests, he or

she does not qualify as a dependent.

     As to the support test, a taxpayer generally must provide

more than half of a claimed dependent's support for the calendar

year in which the taxable year of the taxpayer begins.    Sec.

152(a).    In the case of a child of unmarried parents, if the

child is in the custody of one or both of his parents for more

than one-half of the calendar year and receives more than half

his support during that year from his parents, such child shall

be treated, for purposes of section 152, as receiving over half

of his support during the calendar year from the parent having

custody for a greater portion of the calendar year (the custodial

parent).    Sec. 152(e)(1); King v. Commissioner, 121 T.C. 245,

250-251 (2003).    A custodial parent may release claim to the

exemption pursuant to the provisions of section 152(e)(2), which

provides:

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

            *      *     *      *       *     *      *

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

     For purposes of this subsection, the term "noncustodial
     parent" means the parent who is not the custodial
     parent.

     The temporary regulations promulgated with respect to

section 152(e) provide that a noncustodial parent may claim the

exemption for a dependent 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."1    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 under section 152(e)(2) must be made either on a



     1
      Temporary regulations are entitled to the same weight as
final regulations. See Peterson Marital Trust v. Commissioner,
102 T.C. 790, 797 (1994), affd. 78 F.3d 795 (2d Cir. 1996); Truck
& Equip. Corp. v. Commissioner, 98 T.C. 141, 149 (1992).
                                - 6 -

completed Form 8332 or on a statement conforming to the substance

of Form 8332.    Miller v. Commissioner, supra at 189.

       Form 8332 requires a taxpayer to furnish:   (1) The names of

the children for which exemption claims were released, (2) the

years for which the claims were released, (3) the signature of

the custodial parent confirming his or her consent, (4) the

Social Security number of the custodial parent, (5) the date of

the custodial parent's signature, and (6) the name and the Social

Security number of the parent claiming the exemption.      Id. at

190.

       In the present case, petitioner did not have custody of

Paige at all during 2001 and therefore cannot be deemed to be the

custodial parent for purposes of section 152(e).    As the

noncustodial parent, petitioner is not entitled to the claimed

dependency exemption deductions unless he complied with the

provisions of section 152(e)(2) and the regulations thereunder by

attaching to his return a written declaration or Form 8332

executed by Ms. Sulecki.    Petitioner did not attach such a

declaration or Form 8332 to his return, and accordingly he is not

entitled to the dependency exemption deduction for Paige for

2001.

       Petitioner nevertheless argues that he is current in his

obligations regarding child support and that he is entitled to

the dependency exemption deductions.    The Court is not
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unsympathetic to petitioner's position.      However, the Court is

bound by the language of the statute as it is written and the

accompanying regulations, when consistent therewith.       Michaels v.

Commissioner, 87 T.C. 1412, 1417 (1986).      The Internal Revenue

Code is clear as to the precise circumstance in which a

noncustodial parent becomes entitled to a dependency exemption.

See Neal v. Commissioner, T.C. Memo. 1999-97.      Respondent is

sustained on this issue.

2.   Child Tax Credit

      A taxpayer may be entitled to a credit against tax with

respect to each "qualifying child".      Sec. 24(a).   The plain

language of section 24 establishes a three-pronged test to

determine whether a taxpayer has a qualifying child.       If one of

the qualifications is not met, the claimed child tax credit must

be disallowed.   The first element of the three-pronged test

requires that a taxpayer must have been allowed a deduction for

that child under section 151.    Sec. 24(c)(1)(A).

      As stated supra, the Court has sustained respondent's

determination that petitioner is not entitled to a dependency

exemption deduction for Paige.    Thus, petitioner fails the first

prong of the test of section 24.    The Court sustains respondent's

determination regarding the child tax credit under section 24.
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    Reviewed and adopted as the report of the Small Tax Case

Division.


                                            Decision will be

                                       entered for respondent.
