                       T.C. Memo. 1996-438



                     UNITED STATES TAX COURT



        WILLIAM C. AND KATHERINE H. WHITE, Petitioners v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent


     Docket No. 17786-95.               Filed September 25, 1996.


     William C. and Katherine H. White, pro se.

     Roslyn D. Grand, for respondent.



                       MEMORANDUM OPINION


     COUVILLION, Special Trial Judge:   This case was heard

pursuant to section 7443A(b)(3)1 and Rules 180, 181, and 182.

     Respondent determined a deficiency of $1,288 in petitioners'

1992 Federal income tax.


1
     Unless otherwise indicated, section references are to the
Internal Revenue Code in effect for the year at issue. All Rule
references are to the Tax Court Rules of Practice and Procedure.
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     The sole issue for decision is whether petitioners are

entitled to deductions for dependency exemptions under section

151 for their 1992 tax year for the two children of William C.

White (petitioner) from a former marriage.

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

annexed exhibits, are so found and are incorporated herein by

reference.   At the time their petition was filed, petitioners'

legal residence was Atlanta, Georgia.

     Petitioner was previously married to Virginia White (Ms.

White).   Two children were born of this marriage:   Christopher,

born March 30, 1983, and Allison, born April 13, 1985.

Petitioner and Ms. White were divorced on March 14, 1989,

pursuant to a Dual Judgment of Divorce (divorce decree) issued by

the Superior Court of New Jersey, Chancery Division.   In the

divorce decree, petitioner and Ms. White were granted joint

custody of the two children; however, the primary residence of

the children was declared to be with Ms. White.   Since the

divorce, Christopher and Allison have resided with Ms. White.

The divorce decree further provides that petitioner "shall be

entitled to claim the two (2) children of the marriage as his

beneficiaries for income tax purposes.   The Plaintiff [Ms. White]

shall execute whatever documents may be required to enable the

Defendant [petitioner] to claim the children as his exemptions."
                                 - 3 -


     On November 6, 1989, Ms. White signed a letter prepared by

petitioner that states, in pertinent part:

     According to the   Terms and Conditions of the divorce decree
     between Virginia   E. White and William C. White, Virginia
     must execute the   appropriate papers that will entitle
     William C. White   to claim Christopher and Allison as
     dependents.

     As stated in the decree "The Defendant, (William C. White)
     shall be entitled to claim the two (2) children of the
     marriage as his beneficiaries for income tax purposes. The
     Plaintiff, (Virginia E. White) shall execute whatever
     documents may be required to enable the Defendant to claim
     the children as his exemptions."


     Subsequently, on January 1, 1990, petitioner married

Katherine H. White.     On their 1992 joint Federal income tax

return (return), petitioners claimed dependency exemptions for

Christopher and Allison.     Attached to the return was a copy of

the November 6, 1989, letter signed by Ms. White.     For tax year

1992, Ms. White also claimed dependency exemptions for the two

children.

     In the notice of deficiency, respondent disallowed the

deductions for dependency exemptions claimed by petitioners

"Since the attached copy of the letter dated November 6, 1989,

did not specify the time period you may claim your dependents

exemption".

     The determinations of the Commissioner in a notice of

deficiency are presumed correct, and the burden of proof is on
                              - 4 -


the taxpayer to prove that the determinations are in error.      Rule

142(a); Welch v. Helvering, 290 U.S. 111 (1933).

     Section 151(c) allows taxpayers 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, daughter, stepson, or stepdaughter, "over half of whose

support, for the calendar year in which the taxpayer year of the

taxpayer begins, was received from the taxpayer (or is treated

under section (c) or (e) as received from the taxpayer)".

     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 the 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

the most recent decree of divorce" if there is one in effect.
                               - 5 -


Since petitioner's divorce decree declares that the primary

residence of the children shall be with Ms. White, she is

considered the children's "custodial parent" under section

152(e).

     Petitioner, as the "noncustodial parent", is allowed to

claim a child as a dependent only if one of three statutory

exceptions are met.   Under these exceptions, the "noncustodial

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

and, therefore, entitled to the dependency exemption 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

       (b) the noncustodial parent provides at least $600 for the

support of such child during the calendar year (section

152(e)(4)).
                               - 6 -


     In the present case, the exceptions described as paragraphs

(2) and (3) above, in section 152(e)(3) and (4), do not apply.

There was no multiple support agreement and no pre-1985

instrument since petitioner's divorce decree was rendered after

1985.   Therefore, petitioner is only entitled to the dependency

exemptions if the requirements of section 152(e)(2) are met,

described as paragraph (1) above.

     Section 152(e)(2)(A) specifically requires that the

custodial parent sign "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".

Pursuant to this statutory provision, temporary regulations were

promulgated that provide that, "The written declaration may be

made on a form to be provided by the Service for this purpose.

Once the Service has released the form, any declaration made

other than on the official form shall conform to the substance of

such form."   Sec. 1.152-4T(a), Q&A-3, Temporary Income Tax Regs.,

49 Fed. Reg. 34459 (Aug. 31, 1984).2   Internal Revenue Service

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

Separated Parents, requires the (1) name of the children for

2
     The Court notes that temporary regulations have binding
effect and are entitled to the same weight as final regulations.
Peterson Marital Trust v. Commissioner, 102 T.C. 790, 797 (1994),
affd. 78 F.3d 795 (2d Cir. 1996); Truck & Equipment Corp. v.
Commissioner, 98 T.C. 141, 149 (1992); see LeCroy Research
Systems Corp. v. Commissioner, 751 F.2d 123, 127 (2d Cir. 1984),
revg. on other grounds T.C. Memo. 1984-145.
                               - 7 -


which exemption claims were released, (2) years for which the

claims were released, (3) signature of the custodial parent, (4)

Social Security number of the custodial parent, (5) date of

signature, and (6) name and Social Security number of the parent

claiming the exemption.

     In this case, the Court finds that the November 6, 1989,

letter signed by Ms. White fails to "conform to the substance" of

Form 8332.   Sec. 1.152-4T(a), Q&A-3, Temporary Income Tax Regs.

The letter fails to state the years in which Ms. White was

releasing the claims for exemption, nor does the letter state the

Social Security numbers of either parent.   Most importantly, the

letter fails to explicitly state that Ms. White would not claim

Christopher and Allison as dependents.   In fact, for 1992, Ms.

White did claim the children as dependents.    The letter relied on

by petitioner is essentially nothing more than a restatement of

the divorce decree.   It has no other meaning or significance.

While the Court sympathizes with petitioner and understands

petitioner's intentions in having Ms. White sign the letter

prepared by him, unfortunately, the requirements of section

152(e)(2)(A) have not been met in this case.

     Although petitioner's divorce decree provides that he is

entitled to the dependency exemptions for the two children, State

courts, by their decisions, cannot determine issues of Federal

tax law.   Commissioner v. Tower, 327 U.S. 280 (1946); Kenfield v.
                              - 8 -


United States, 783 F.2d 966 (10th Cir. 1986); Nieto v.

Commissioner, T.C. Memo. 1992-296.    Thus, the Court concludes

that, pursuant to section 152(e), petitioner is not entitled to

claim his two children as dependents for 1992.    His remedy, if

any, lies in the State court for enforcement of the divorce

decree.



                                           Decision will be entered

                                      for respondent.
