                  T.C. Summary Opinion 2004-129



                     UNITED STATES TAX COURT



         JEFFREY SCOTT AND NANCY J. ROBB, Petitioners v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 17555-03S.          Filed September 16, 2004.



     Jeffrey Scott Robb, pro se.

     Mary Ann Waters, for respondent.


     POWELL, 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.1    The decision to be

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

should not be cited as authority.



     1
          Unless otherwise indicated, subsequent section
references are to the Internal Revenue Code in effect for the
year in issue.
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     Respondent determined a deficiency of $3,592 in petitioners’

2001 Federal income tax.   The issues are (1) whether petitioners

are entitled to claim dependency exemption deductions for

petitioner Jeffrey Scott Robb’s (hereinafter petitioner) children

from a former marriage under section 151, and (2) whether

petitioners are entitled to claim child tax credits for two of

the children under section 24.    Petitioners resided in

Woodbridge, Virginia, at the time the petition was filed.

                             Background

     The facts are undisputed and may be summarized as follows.

Petitioner and Lorreta Delaney (Loretta) were divorced in 1994.

Together they had four children.    In 2001, three of the four

children were minors.   Petitioner and Loretta entered into a

written separation agreement with addendums.    In the final

divorce decree it is noted that the Circuit Court of Stafford

County “neither affirms, ratifies nor incorporates” the agreement

or its addendums into the final divorce decree.    The agreement,

dated September 29, 1992, stated:    “Provided the Husband is

current in his obligations to pay child support, he may have the

children’s tax exemptions for both state and federal tax

returns.”    The parties stipulated that petitioner was current in

his obligation to pay child support during 2001.    Loretta was the

custodial parent of the children within the meaning of section

151(e)(1).
                               - 3 -

     On their 2001 Federal income tax return, petitioners claimed

dependency exemption deductions, inter alia, for three of

petitioner’s children from his marriage to Loretta and child tax

credits for two of those children.     Loretta also claimed

dependency exemption deductions for the three children.

Respondent disallowed the dependency exemption deductions and the

child tax credits claimed by petitioners.

                             Discussion

1.   Dependency Exemptions

     Sections 151 and 152 provide that a taxpayer is entitled to

deduct an exemption for a dependent if the taxpayer provides over

half of the support for the dependent.     The pre-1985 version of

the dependency exemption deduction as it applied to the children

of divorced or separated parents was “often subjective and

[presented] difficult problems of proof and substantiation”.     H.

Rept. 98-432 (Part II), at 1498 (1984).     In order to provide more

certainty, Congress amended section 152(e) to “[allow] the

custodial spouse the exemption unless that spouse waives his or

her right to claim the exemption.    Thus, dependency disputes

between parents will be resolved without the involvement of the

Internal Revenue Service.”   Id. at 1499.

     Under section 152(e)(1), in the case of a minor dependent

whose parents are divorced or separated and together provide over

half of the support for the minor dependent, the parent having
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custody for a greater portion of the calendar year (“custodial

parent”) generally shall be treated as providing over half of the

support for the minor dependent.   A noncustodial parent may be

treated as providing over half of the support for the minor

dependent if the requirements of section 152(e)(2) are satisfied.

     Section 152(e)(2) provides:

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

               (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.

     Section 1.152-4T(a), Q&A-3, Temporary Income Tax Regs., 49

Fed. Reg. 34459 (Aug. 31, 1984),2 provides:

          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. The written
     declaration may be made on a form to be provided by the
     Service for this purpose. * * *



     2
        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); see also
LeCroy Research Sys. Corp. v. Commissioner, 751 F.2d 123, 127 (2d
Cir. 1984), revg. on other grounds T.C. Memo. 1984-145.
                                 - 5 -

     Pursuant to the regulations, the Commissioner promulgated

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

Separated Parents.   Form 8332 instructs a taxpayer to furnish (1)

the names of the children for whom exemption claims were

released, (2) the current and future 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 Social Security number of the

parent claiming the exemption.    See Miller v. Commissioner, 114

T.C. 184, 190 (2000), affd. on another issue sub nom. Lovejoy v.

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

provide that if Form 8332 is not used, a statement conforming to

the substance of Form 8332 must be submitted.    See sec. 1.152-

4T(a), Q&A-3, Temporary Income Tax Regs., supra.    The regulations

further 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.”     Id.

     In Miller v. Commissioner, 114 T.C. at 186, the order of

final divorce granted custody of the children to the wife, but

provided that   the husband “shall claim both of [the] children on
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his tax returns as exemptions”.   There was no statement that the

wife would not claim the children as dependents.   The order was

approved by the wife’s attorney and the court, but she had not

signed the order.   We held that the provisions of the final

divorce decree did not meet the requirements or the substance of

Form 8332.   Inter alia, the taxable years for which the

exemptions were released were not stated, and the statement did

not provide that the custodial parent would not claim exemptions

for the children.   Furthermore, the wife had not signed the

order.

      While in this case Loretta did sign the separation

agreement, that agreement was specifically not incorporated in

the final divorce decree.   The agreement did not set forth the

taxable years for which it applied.

      More importantly, the separation agreement did not provide

that Loretta would not claim exemptions for the children, and,

indeed, she did claim the exemptions for the 2001 taxable year.

In White v. Commissioner, T.C. Memo. 1996-438, we held that the

custodial parent’s letter, attached to the noncustodial parent’s

return, was insufficient under section 152(e).   The custodial

parent did not include an explicit statement that she agreed not

to claim the exemption and did not state the years in which she

would release the claim to the dependency exemption deduction.

Id.   While the custodial parent also did not include her Social
                               - 7 -

Security number, that omission was not a determinative factor.

We emphasized the lack of the custodial parent’s explicit

statement not to claim the dependency exemption deduction.      Id.

     Finally, it seems to us that, if petitioner were to prevail

here, respondent would be faced with the same whipsaw problems

that Congress sought to prevent by enacting section 152(e).     If

petitioners are entitled to claim the dependency exemption

deductions, it is not unreasonable to require that they obtain

from Loretta a Form 8332 or similar statement that conforms with

the form.   If she refuses, then the dispute should be placed

before the local courts and not before the Internal Revenue

Service and this Court.   We find that this case is controlled by

our reasonings in White v. Commissioner, supra, and Miller v.

Commissioner, supra.

2.   Child Tax Credits

     Section 24(a) provides that a taxpayer may claim a credit

for “each qualifying child”.   A qualifying child is defined,

inter alia, as any individual if “the taxpayer is allowed a

deduction under section 151 with respect to such individual for

the taxable year”.   Sec. 24(c)(1)(A).   For the reasons stated

above, petitioners may not claim dependency exemption deductions

for the children under section 151, and, therefore, they may not

claim the child tax credits.
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    Reviwed and adopted as the report of the Small Tax Case

Division.

                                  Decision will be entered

                             for respondent.
