                  T.C. Summary Opinion 2002-104



                     UNITED STATES TAX COURT



          SHALOM J. & DANIEL F. BONHAM, Petitioners v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent


     Docket No. 6201-01S.              Filed August 7, 2002.


     Daniel F. Bonham, pro se.

     Robert V. Boeshaar, for respondent.



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

the provisions of section 7463 of the Internal Revenue Code in

effect at the time the petition was filed.   The decision to be

entered is not reviewable by any other court, and this opinion

should not be cited as authority.   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.
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     Respondent determined a deficiency in petitioners’ 1998

Federal income tax in the amount of $1,880.       After concessions by

respondent, the Court must decide whether petitioners are

entitled to claim a dependency exemption deduction for Ammon

Bonham.

     Some of the facts in this case have been stipulated and are

so found.   Petitioners resided in Woodburn, Oregon, when their

petition was filed.

     Beginning on January 1, 1996, petitioner Daniel F. Bonham’s

son by a previous marriage, Ammon Bonham (Ammon), lived with

petitioners.    During the taxable year 1998 Ammon lived with

petitioners for the entire year.       Petitioners provided 100

percent of Ammon’s support during the taxable year 1998.

Petitioners claimed a dependency exemption for Ammon on their

1998 income tax return.

     In 1987, petitioner Daniel F. Bonham (petitioner) was

divorced from Michelle Cutler, by a decree of divorce from a Utah

civil court (the divorce decree).       The divorce decree is not in

the record.    The divorce decree awarded Michelle Cutler full

custody of Ammon.

     Respondent, among other things, disallowed the dependency

exemption deduction for Ammon Bonham.       Section 151(c) allows a

taxpayer to deduct an annual exemption amount for each dependent,

as defined in section 152.    Under section 152(a), the term
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“dependent” means, in pertinent part, a son of the taxpayer over

half of whose support was received from the taxpayer.   Sec.

152(a)(1).

      In the case of a child of divorced parents, section

152(e)(1) provides in pertinent part that if a child receives

over half of his support from his parents who are divorced under

a decree of divorce and the child is in the custody of one or

both of his parents for more than one-half of the year, then the

child will be treated as receiving over half of his support from

the parent having custody for a greater portion of the calendar

year.

      Section 1.152-4(b), Income Tax Regs., provides that the term

“custody” is “determined by the terms of the most recent decree

of divorce”.   Because the divorce decree grants Michelle Cutler

full custody of Ammon, she is considered Ammon’s “custodial

parent” under section 152(e).   Cafarelli v. Commissioner, T.C.

Memo. 1994-265.

   Petitioner as the “noncustodial parent”, is allowed to claim

Ammon as a dependent only if one of three statutory exceptions in

section 152(e) is met.   Under these exceptions, the “noncustodial

parent” is treated as providing over half of a child’s support

if:   (1) Pursuant to section 152(e)(2), the custodial parent

signs a written declaration that such custodial parent will not

claim such child as a dependent, and the noncustodial parent
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attaches such written declaration to the noncustodial parent’s

return for the taxable year; (2) pursuant to section 152(e)(3),

there is a multiple support agreement between the parties as

provided in section 152(c); or (3) pursuant to section 152(e)(4),

there is a qualified pre-1985 instrument providing that the

noncustodial parent shall be entitled to any deduction allowable

under section 151 for such child, provided that certain other

requisites, not pertinent here, are met.

     Here the exceptions in section 152(e) do not apply.    We have

no choice except to find that petitioners are not entitled to

claim the dependency exemption deduction for 1998.

     Reviewed and adopted as the report of the Small Tax Case

Division.



                                           Decision will be entered

                                     under Rule 155.
