                              T.C. Memo. 2015-141



                         UNITED STATES TAX COURT



                 HIRAM LEROY PORTER, Petitioner v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent



      Docket No. 19448-13.                          Filed August 5, 2015.



      Hiram Leroy Porter, pro se.

      Andrew K. Glover, for respondent.



            MEMORANDUM FINDINGS OF FACT AND OPINION


      LAUBER, Judge: The Internal Revenue Service (IRS or respondent) deter-

mined a deficiency of $2,904 for petitioner’s 2010 taxable year.1 The central



      1
        All statutory references are to the Internal Revenue Code (Code) in effect
for the tax year in issue, and all Rule references are to the Tax Court Rules of
Practice and Procedure. We round all monetary amounts to the nearest dollar.
                                        -2-

[*2] question for decision is whether petitioner has sufficiently substantiated his

claim, as a noncustodial parent, to a dependency exemption deduction for one of

his three minor children. The answer to that question determines whether

petitioner is entitled to head of household filing status and a child tax credit. We

decide all issues in favor of respondent.

                               FINDINGS OF FACT

      The parties filed a stipulation of facts with accompanying exhibits that are

incorporated by this reference. Petitioner resided in Virginia when he petitioned

this Court.

      Petitioner has three children from a previous marriage. The marriage was

dissolved in 2002 by a Florida court, which entered a divorce decree embodying

the terms of a mediation agreement that petitioner and his ex-wife had reached.

The decree specified that petitioner’s ex-wife was to have primary residential

custody of all three children and was entitled to claim the oldest and youngest

children as dependents for Federal income tax purposes, while petitioner was

entitled to claim the middle child as a dependent. The decree was signed and
                                         -3-

[*3] entered on November 27, 2002, by Judge Karen K. Cole. Neither petitioner

nor his ex-wife signed the decree.2

       Petitioner attempted to file electronically his Federal income tax return for

2010. But unbeknownst to him, his ex-wife had claimed all three children (of

whom she continued to have custody) as dependents on her 2010 return, which

caused the IRS to reject his electronic filing. Petitioner then submitted a paper

return claiming his youngest child as a dependent; he also claimed head of

household filing status and a child tax credit.3 Petitioner did not attach to his

return Form 8332, Release/Revocation of Release of Claim to Exemption for

Child by Custodial Parent, or any other document signed by his ex-wife and

stating that she would not claim that child as a dependent.

      Respondent commenced an examination of petitioner’s 2010 return. During

the audit petitioner submitted a copy of the divorce decree, leading the examiner to


      2
        Petitioner testified to the existence of a written copy of the mediation
agreement that he and his ex-wife had signed, but he did not produce this docu-
ment at trial. Respondent’s counsel stated that he had requested a copy of this
document beginning three months before trial, but petitioner did not respond to
this or any subsequent request. The Court left the record open for 30 days to
enable petitioner to find and submit a copy of the mediation agreement, but he did
not do so.
      3
       Petitioner testified that he and his ex-wife had orally agreed in 2008 to alter
the divorce decree and have him claim the youngest child as a dependent, with his
ex-wife claiming the elder two children.
                                         -4-

[*4] note that petitioner had claimed a deduction for a dependent child different

from the one the decree entitled him to claim. The examiner suggested that

petitioner file an amended return; he did so, listing the middle child as a

dependent. But this did not solve the problem because petitioner’s ex-wife had

claimed that child as a dependent also. The IRS accordingly issued petitioner a

notice of deficiency disallowing his claimed dependency exemption deduction and

(as a corollary thereof) his claimed head of household filing status and child tax

credit. Petitioner timely petitioned this Court challenging this deficiency.

                                     OPINION

      The Commissioner’s determinations in a notice of deficiency are generally

presumed correct, and the taxpayer bears the burden of proving those determina-

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

Deductions and credits are a matter of legislative grace; taxpayers bear the burden

of proving their entitlement to deductions allowed by the Code and substantiating

the amounts thereof. INDOPCO, Inc. v. Commissioner, 503 U.S. 79, 84 (1992);

sec. 1.6001-1(a), Income Tax Regs.

      Section 151 allows a deduction for “personal exemptions,” including ex-

emptions for dependents; for 2010, this amount was $3,650 per exemption. Rev.

Proc. 2009-50, 2009-45 I.R.B. 617. When the parents of a dependent child are
                                        -5-

[*5] divorced or legally separated, section 152(e)(1) generally awards the

dependency exemption to the custodial parent, that is, the parent having custody of

the child for the greater portion of the calendar year. Sec. 152(e)(4). Section

152(e)(2) provides an exception to this rule if two conditions are met, namely, if

the custodial parent “signs a written declaration” releasing her claim to the exemp-

tion and if the noncustodial parent “attaches such written declaration to the

noncustodial parent’s return for the taxable year.” Sec. 152(e)(2)(A) and (B). The

declaration by the custodial parent must be made on Form 8332 or in a signed

document substantially similar to Form 8332. See Miller v. Commissioner, 114

T.C. 184, 190-191 (2000), aff’d on other grounds sub nom. Lovejoy v.

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

      Petitioner did not attach Form 8332 to his 2010 return. It appears that he

did not ask his ex-wife to sign a Form 8332 because he assumed the 2002 divorce

decree would be sufficient. Thus, he must rely on another form of “written declar-

ation.”

      A court order or decree executed before July 3, 2008, can serve as a “written

declaration” for purposes of section 152(e)(2)(A). See sec. 1.152-4(e)(5), Income

Tax Regs. In determining whether a judicial decree qualifies as such, we must

consider the statutory requirements in effect for the year in which the decree was
                                         -6-

[*6] executed. See Swint v. Commissioner, 142 T.C. 131, 133-136 (2014). As in

effect during 2002, the statute required that “the custodial parent sign[] a written

declaration (in such manner and form as the Secretary may by regulations pre-

scribe) that such custodial parent will not claim such child as a dependent for any

taxable year beginning in such calendar year.” Sec. 152(e)(2)(A) (2002); see

Swint, 142 T.C. at 136-137. This Court has consistently upheld the requirement,

explicit on the face of the statute, that the custodial parent sign the written declara-

tion. Swint, 142 T.C. at 136-137; Miller, 114 T.C. at 193; Hendricks v. Commis-

sioner, T.C. Memo. 2014-192, at *7; Allred v. Commissioner, T.C. Memo. 2014-

54, at *8.

      Petitioner’s ex-wife, the custodial parent during 2010, did not sign the 2002

divorce decree. Petitioner argues that the decree should nevertheless satisfy the

“written declaration” requirement because it was signed by a State court judge.

Unfortunately for petitioner, this Court, relying on the plain language of section

152(e), has consistently rejected that argument. See, e.g., Swint, 142 T.C. at 137

(“A State court order that is not signed by the custodial parent does not satisfy the

express statutory requirements of section 152(e)(2)(A).”); Miller, 114 T.C. at 196

(disallowing dependency exemption even though noncustodial parent provided

IRS with divorce decree signed by State court judge).
                                        -7-

[*7] Alternatively, petitioner asserts that he might have secured a timely signed

declaration from his ex-wife if the IRS examiner had not led him to believe that

the divorce decree alone would suffice. But respondent’s counsel repeatedly in-

formed petitioner of the signature requirement and provided him with multiple

opportunities to produce the necessary documentation. Petitioner failed to do so,

and we decline to entertain his estoppel argument.4

      We are not unsympathetic to petitioner’s position. By requiring an unam-

biguous signed declaration by the custodial spouse, Congress sought to avoid

complex factual inquiries into the subjective intentions of divorced parents. This

statutory requirement may sometimes impose harsh results on taxpayers such as

petitioner, when an ex-spouse claims dependency exemption deductions in

violation of their divorce decree. But we are bound by the statute as written by

Congress. See Michaels v. Commissioner, 87 T.C. 1412, 1417 (1986); Brissett v.


      4
        In any event, there is no requirement that IRS officials notify taxpayers of
their specific responsibilities under the tax laws. Allred v. Commissioner, T.C.
Memo. 2014-54, at *11; Chamberlain v. Commissioner, T.C. Memo. 2007-178, 94
T.C.M. (CCH) 35, 37; see also Wilkinson v. United States, 157 Ct. Cl. 847, 859
(1962) (“[T]he assertions or representations of a Revenue agent, pertaining to a
question of law, are not binding upon the United States.”). Petitioner in his
posttrial brief cites IRS Publication 501, Exemptions, Standard Deduction, and
Filing Information. But that publication explicitly states that if a noncustodial
parent relies on a divorce decree, the decree must contain a “signature page with
the other parent’s signature and the date of the agreement.”
                                           -8-

[*8] Commissioner, T.C. Memo. 2003-310, 86 T.C.M. (CCH) 582, 583. We have

no alternative but to conclude that petitioner has failed to carry his burden of

proving his entitlement to a dependency exemption deduction for 2010 and (as a

corollary of that conclusion) that he is not entitled to head of household filing

status or a child tax credit for that year.5

       To reflect the foregoing,


                                                 Decision will be entered for

                                          respondent.




      5
        To be entitled to head of household filing status, a taxpayer must maintain
a home that “constitutes for more than one-half of such taxable year the principal
place of abode” of at least one qualifying child. Sec. 2(b). Petitioner stipulated
that all three children resided with their mother for more than half of calendar year
2010. Thus, he would not be entitled to head of household filing status even if he
had proven his entitlement to a dependency exemption deduction. To be entitled
to the child tax credit, a taxpayer must have a “qualifying child * * * for which the
taxpayer is allowed a deduction under section 151.” See sec. 24(a).
