                         T.C. Memo. 2010-179



                       UNITED STATES TAX COURT



                   GARY KONRAD, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 9844-09.               Filed August 9, 2010.



     Gary Konrad, pro se.

     Monica E. Koch, for respondent.



              MEMORANDUM FINDINGS OF FACT AND OPINION


     VASQUEZ, Judge:    In a notice of deficiency respondent

determined a $3,300 deficiency in petitioner’s 2007 Federal

income tax.   After a concession by respondent,1 the issues for



     1
        Respondent concedes that petitioner is entitled to claim
his daughter as a dependent. Therefore, the amount of the
deficiency remaining in controversy is $1,850.
                                - 2 -

decision are whether petitioner is entitled to a dependency

exemption deduction and a child tax credit for his son.

     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.

                          FINDINGS OF FACT

     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.    Petitioner resided in New

York when the petition was filed.

     Petitioner was married to Theresa Konrad (Ms. Konrad) until

November 13, 2000.    Petitioner and Ms. Konrad had four children,

A.K.,2 C.K., S.L.K., and L.W.K., born in 1984, 1986, 1992, and

1995, respectively.

     On November 13, 2000, the Supreme Court of the State of New

York entered a Judgment of Divorce (judgment) dissolving the

Konrads’ marriage.    The judgment incorporated the Open Court

Stipulation (stipulation) contained within the transcript of the

divorce proceedings.    The court awarded Ms. Konrad sole custody

of all four children; petitioner was awarded visitation rights.




     2
        It is the practice of the Court to refer to a minor by
his or her initials. See Rule 27(a)(3).
                                 - 3 -

     According to the stipulation upon which petitioner relies:

“In the event Mrs. Konrad obtains full-time employment, Mr.

Konrad and Mrs. Konrad will split the deductions with Mr. Konrad

taking * * * [A.K. and S.L.K.] and Mrs. Konrad taking * * * [C.K.

and L.W.K.] as tax deductions.”3    On petitioner’s Form 1040, U.S.

Individual Income Tax Return, for 2007, dated February 19, 2008,

he claimed both S.L.K. and L.W.K. as dependents.     The remaining

two children were not claimed.     Relying on the stipulation,

petitioner claimed S.L.K and L.W.K. because Ms. Konrad admitted

to working only 2 or 3 days a week.      Neither petitioner nor Ms.

Konrad signed the judgment or the stipulation.     Instead, the

court reporter signed the stipulation, and the trial judge signed

the judgment.   Petitioner failed to attach to his 2007 return

Form 8332, Release of Claim to Exemption for Child of Divorced or

Separated Parents, or any other document that conforms to its

substance.

     While respondent conceded that petitioner was entitled to

claim a dependency exemption deduction for S.L.K., he disallowed

the deduction for L.W.K.   Respondent disallowed petitioner’s



     3
        The stipulation is ambiguous. We presume, however, that
the arrangement contemplated in the stipulation was that
petitioner would claim all four children as dependents unless Ms.
Konrad secured full-time employment, in which case petitioner
would claim only A.K. and S.L.K. Regardless of any existing
ambiguity, petitioner’s claim fails to satisfy the requirements
of sec. 152(e)(2) for the reasons stated herein. Therefore, the
dependency exemption deduction must be disallowed.
                                 - 4 -

dependency exemption deduction and child tax credit because

“another taxpayer has also claimed” L.W.K. and “there is no

stipulation specifying in what circumstances * * * [petitioner]

would be able to claim” L.W.K.

                               OPINION

      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).

I.   Dependency Exemption Deduction

      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 qualify for the deduction.         Sec.

152(c).   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.     Sec.

152(c)(1)(B).

      During 2007 L.W.K. resided with Ms. Konrad.    Thus, L.W.K.

did not have the same principal place of abode as petitioner for
                                 - 5 -

more than one-half of the taxable year and is not petitioner’s

qualifying child under section 152(c).    See sec. 152(c)(1)(B).

     A qualifying relative must satisfy four requirements for the

taxpayer to qualify for the deduction.    Sec. 152(d).    The two

pertinent requirements are that the taxpayer must provide over

one-half of the individual’s support for the taxable year, and

the individual must not be a qualifying child of the taxpayer or

of any other taxpayer for the taxable year.    Sec. 152(d)(1)(C)

and (D).

     Petitioner has not substantiated the amount of L.W.K.’s

support from all sources in 2007.    In addition, petitioner has

not established that L.W.K. was not a qualifying child of any

other taxpayer (e.g., Ms. Konrad) for 2007.    See sec.

152(d)(1)(D).   L.W.K., therefore, is not petitioner’s qualifying

relative 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 the following

five requirements are met.
                               - 6 -

     • Support.--The child receives over one-half of child’s

     support during the calendar year from the child’s parents.

     Sec. 152(e)(1)(A).

     • Parents.--The parents are divorced or legally separated

     under a decree of divorce or separate maintenance, are

     separated under a written separation agreement, or live

     apart at all times during the last 6 months of the calendar

     year.   Id.

     • Custody.--The child is in the custody of one or both

     parents for more than one-half of the calendar year.   Sec.

     152(e)(1)(B).

     • Custodial Parent Releases Claim to Exemption.--The

     custodial parent signs 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 for the

     taxable year.   Sec. 152(e)(2)(A).

     • Noncustodial Parent Attaches Release to Return.--The

     noncustodial parent attaches the written declaration to the

     noncustodial parent’s return for the taxable year.   Sec.

     152(e)(2)(B).

     One of the essential elements for conforming to the form and

substance of Form 8332 is the custodial parent’s signature on the

release of the dependency exemption to the noncustodial parent.

See Miller v. Commissioner, 114 T.C. 184, 190 (2000) (stating
                                - 7 -

that “Satisfying the signature requirement is critical to the

successful release of the dependency exemption”).   The signature

of another party, including the presiding judge or the parties’

attorneys, is insufficient.    Neal v. Commissioner, T.C. Memo.

1999-97 (stating that “Section 152(e)(2) and the corresponding

regulations require, unequivocally, that the signature of the

custodial parent be attached to the return of a noncustodial

parent claiming a dependency exemption”); see also Miller v.

Commissioner, supra at 192-194.    Only the custodial parent’s

signature will suffice.    Miller v. Commissioner, supra at 195-

196.

       The stipulation and the judgment petitioner submitted do not

conform to the form and substance of Form 8332.   Petitioner

failed to procure Ms. Konrad’s signature on either the

stipulation or the judgment.    When petitioner later attempted to

procure Ms. Konrad’s signature on Form 8332, Ms. Konrad refused.

The signatures of the judge and the clerk from the divorce

proceeding are not adequate substitutes for Ms. Konrad’s

signature.    Thus, without her signature on a form that releases

her claim to the dependency exemption deduction, petitioner

failed to satisfy section 152(e)(2)(A) and may not claim L.W.K.

for the purpose of receiving the exemption.

       Petitioner also fails to satisfy section 152(e)(2)(B), which

provides that the written declaration must be attached to the
                                  - 8 -

return for that taxable year.     Petitioner admits he did not

attach Form 8332 or any other document to his 2007 return.

      Accordingly, L.W.K. is not treated as petitioner's

qualifying child or qualifying relative under section 152(e)(1).

II.   Child Tax Credit

      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 L.W.K. is not petitioner’s

qualifying child under section 152(c) nor treated as such under

section 152(e), petitioner is not entitled to the child tax

credit for L.W.K.

      We are not unsympathetic to petitioner’s position.       We also

realize that the statutory requirements may seem to impose harsh

results on taxpayers, such as petitioner, who believe they are

entitled to claim the dependency exemption deductions or child

tax credits under the conditions of a divorce decree.        However,

we are bound by the statute as it is written.         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

                                          under Rule 155.
