                       T.C. Memo. 2000-54



                     UNITED STATES TAX COURT



                ELLA LOUISE WOOTEN, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent


     Docket No. 16544-98.                 Filed February 22, 2000.


     Ella Louise Wooten, pro se.

     Linda West, for respondent.



                       MEMORANDUM OPINION

     COUVILLION, Special Trial Judge:   Respondent determined

deficiencies of $3,759, $4,208, and $1,919 in petitioner’s

Federal income taxes for 1995, 1996, and 1997, respectively.

     The issues for decision are:   (1) Whether petitioner is

entitled to claim dependency exemption deductions under section
                                - 2 -


151(c)1 for her children, William and Kenya Wooten; (2) whether

petitioner is entitled to head-of-household filing status under

section 2(a); and (3) whether petitioner is entitled to claim the

earned income credit under section 32(a).

     Some of the facts were stipulated, and those facts, with the

annexed exhibits, are so found and are incorporated herein by

reference.   Petitioner's legal residence at the time the petition

was filed was Jackson, Mississippi.

     Petitioner was previously married to Willie Earnest Wooten

(Mr. Wooten).    Two children were born of this marriage:   Kenya

Darene, born on December 20, 1982, and William Barnard, born on

April 1, 1984.    Petitioner and Mr. Wooten were divorced on June

21, 1991, pursuant to a Final Judgment of Divorce (divorce

decree) issued by the Chancery Court of the First Judicial

District of Hinds County, Mississippi (chancery court).     The

divorce decree awarded petitioner and Mr. Wooten joint custody of

the two children but did not designate a primary residence for

the two children.

     Mr. Wooten was awarded custody of the two children pursuant

to a Final Judgment Awarding Custody of Children, Visitation

Rights, Child Support and Property Settlement (custody decree)

issued by the chancery court on July 16, 1993.    The custody


     1
          Unless otherwise indicated, section references are to
the Internal Revenue Code in effect for the years at issue.
                                - 3 -


decree further awarded Mr. Wooten exclusive use and possession of

the family home and designated that home as the primary residence

of the children.   The custody decree awarded petitioner

visitation rights and ordered petitioner to pay child support

equal to 20 percent of her adjusted gross income but not less

than $50 per month per child.

     During the years at issue, Mr. Wooten made the mortgage

payments on the family home, and the two children lived with him

in that home.   Mr. Wooten was employed during this period and

provided for the needs of the children.   Neither Mr. Wooten nor

the two children were receiving any public assistance during the

years at issue.

     On her Federal income tax returns for 1995, 1996, and 1997,

petitioner claimed dependency exemption deductions for Kenya and

William.   For all 3 years, petitioner claimed head-of-household

filing status under section 2(a) and the earned income credit

under section 32(a).   In a notice of deficiency for the 3 years

at issue, respondent disallowed the dependency exemption

deductions for Kenya and William and determined petitioner’s

filing status to be single.   Respondent also disallowed the

earned income credit for 1995 and 1996 and adjusted petitioner's

claimed earned income credit for 1997.    See infra note 2.

     Respondent disallowed the dependency exemption deductions

claimed by petitioner for William and Kenya Wooten because Mr.
                              - 4 -


Wooten was the custodial parent of the two children and was thus

treated as providing over half of their support for each year,

regardless of the actual support provided by petitioner.   Section

151(c) allows taxpayers to deduct an annual exemption amount for

each dependent, as defined in section 152.   Under section 152(a),

the term "dependent" means certain individuals, such as a son or

daughter, over half of whose support was received from the

taxpayer (or is treated under subsections (c) or (e) as received

from the taxpayer) during the taxable year in which such

individuals are claimed as dependents.

     The support test in section 152(e)(1) applies if:   (1) A

child receives over half of his support during the calendar year

from his parents; (2) the parents are divorced under a decree of

divorce; and (3) such child is in the custody of one or both of

his parents for more than one half of the calendar year.   If

these requirements are satisfied, as in the present case, the

"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 (* * * referred to as the custodial parent)" thus allowing

the dependency exemption to be claimed by the "custodial parent".

Sec. 152(e)(1).

     To decide who has custody, section 1.152-4(b), Income Tax

Regs., provides that custody will be determined by the terms of
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the most recent custody decree if there is one in effect.    Since

the State court custody decree declared that the primary

residence of the children was with Mr. Wooten, he is considered

the children’s custodial parent under section 152(e). Therefore,

Mr. Wooten is entitled to claim the dependency exemption

deductions for William and Kenya.

      Petitioner, as the noncustodial parent, would be allowed the

dependency exemption deductions only if one of three statutory

exceptions were met.   Under these exceptions, the noncustodial

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

and, therefore, is entitled to the dependency exemption

deductions if:

      (1)(a) The custodial parent signs a written declaration that

such custodial parent will not claim such child as a dependent,

and

         (b) the noncustodial parent attaches such written

declaration to the noncustodial parent’s return for the taxable

year (section 152(e)(2)); or

      (2) a multiple support agreement pursuant to section 152(c)

determines support (section 152(e)(3)); or

      (3)(a) a qualified pre-1985 instrument provides that the

noncustodial parent shall be entitled to any deduction allowable

under section 151 for such child, and
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        (b) the noncustodial parent provides at least $600 for

the support of such child during the calendar year (section

152(e)(4)).

     None of the exceptions to the general rule apply in the

present case.   Petitioner did not present evidence of a written

declaration from Mr. Wooten relinquishing his right to claim

Kenya and William as dependents, there was no multiple support

agreement, and there was no pre-1985 instrument since

petitioner’s divorce decree was rendered in 1991.   Accordingly,

the Court sustains respondent’s determination that petitioner is

not entitled to dependency exemption deductions for Kenya and

William for 1995, 1996, and 1997.

     Respondent determined petitioner’s filing status to be

single rather than head-of-household for 1995, 1996, and 1997 and

disallowed the earned income credit for 1995 and 1996 because

William and Kenya did not reside with petitioner for more than 6

months during any of these years.   Respondent also adjusted the

amount of petitioner's 1997 earned income credit to reflect that

petitioner did not have a qualifying child for that year because

William and Kenya did not reside with petitioner for more than 6

months during 1997.   See infra note 2.

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

taxpayer who is unmarried at the close of his or her taxable year

and who maintains as his or her home a household that constitutes
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the principal place of abode for more than one-half of the

taxable year of a son or daughter of the taxpayer who resides

there as a member of that household.    An individual taxpayer is

considered as maintaining a household only if he or she furnishes

more than one-half of the cost of maintaining that household.

See sec. 2(b).

     Section 32(a) provides for an earned income credit in the

case of an eligible individual.   Section 32(c)(1)(A), in

pertinent part, defines an "eligible individual" as an individual

who has a qualifying child for the taxable year.2    Sec.

32(c)(1)(A)(i).    A qualifying child is one who satisfies a

relationship test, a residency test, an age test, and an

identification requirement.    See sec. 32(c)(3).   To satisfy the

residency test, the qualifying child must have the same principal

place of abode as the taxpayer for more than one-half of the

taxable year in which the credit is claimed.    See sec.

32(c)(3)(A)(ii).



     2
          Although petitioner may be considered an eligible
individual without a qualifying child pursuant to sec.
32(c)(1)(A)(ii), petitioner is not entitled to an earned income
credit for 1995 and 1996 because her adjusted gross income for
those years exceeds the sec. 32(a) limitation for such eligible
individuals. However, petitioner's 1997 adjusted gross income
did not exceed the sec. 32(a)(2) limitation for such eligible
individuals. Accordingly, respondent allowed petitioner the
earned income credit for 1997 as an eligible individual without a
qualifying child. However, petitioner's claim to the earned
income credit was based on her having two qualifying children.
                                - 8 -


     Mr. Wooten was awarded custody of the two children in 1993.

William and Kenya lived with Mr. Wooten, and he provided their

support during the years at issue.      Petitioner did not provide

any evidence that Kenya or William resided in her home for more

than 6 months during 1995, 1996, or 1997.      Since the two children

did not have their principal place of abode with petitioner for

more than 6 months during 1995, 1996, or 1997, petitioner is not

entitled to head-of household filing status for those years or

the earned income credit for 1995 and 1996, nor is she entitled

to the earned income credit as an eligible person with two

qualifying children.    Respondent, therefore, is sustained in the

disallowance of petitioner’s claimed head-of-household filing

status for 1995, 1996, and 1997 and the earned income credit for

1995 and 1996 as well as in the adjustment of petitioner's 1997

earned income credit.

     In addition, petitioner presented no evidence to establish

the amount of support she provided during the years in question

and no evidence to establish that such amounts constituted more

than one-half of the total support provided to her children.      The

record contains copies of several State court orders that decreed

petitioner in arrears in her child support obligations and

ordered withholdings from her earnings to be paid to the

Department of Human Services, State of Mississippi.      In addition,

for 1 or more of the years at issue, it appears that the
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refundable earned income credit claimed by petitioner on her

income tax returns was remitted by respondent to the Mississippi

Department of Human Services, under section 6402(c), to offset

petitioner’s past due support obligations.    At trial, petitioner

challenged respondent’s authority to remit such amounts; however,

this Court has no authority to restrain or review any credit or

reduction made by the Commissioner under section 6402.    See sec.

6512(b)(4); Savage v. Commissioner, 112 T.C. 46 (1999).



                                           Decision will be entered

                                      for respondent.
