                         T.C. Summary Opinion 2015-41



                         UNITED STATES TAX COURT



                  GREGORY G. STOKES, Petitioner v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent



      Docket No. 14488-14S.                         Filed July 14, 2015.



      Gregory G. Stokes, pro se.

      Emile Louis Hebert, III, for respondent.



                              SUMMARY OPINION


      PUGH, Judge: This case was heard pursuant to the provisions of section

7463 of the Internal Revenue Code in effect when the petition was filed.1



      1
       Unless otherwise indicated, all 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.
                                        -2-

Pursuant to section 7463(b), the decision to be entered is not reviewable by any

other court, and this opinion shall not be treated as precedent for any other case.

      On March 24, 2014, respondent determined a deficiency of $3,665 in

petitioner’s Federal income tax for 2011. The issues for decision are whether

petitioner is entitled to dependency exemption deductions and the child tax credit

for his three children.

                                    Background

      Some of the facts have been stipulated, and the stipulated facts are

incorporated in our findings by this reference. Petitioner resided in Louisiana at

the time he filed his petition.

      Petitioner separated from his wife Gina Stokes sometime between 2007 and

2011. The separation was formalized by an agreement between petitioner and Ms.

Stokes signed on May 15, 2011. That agreement gave to Ms. Stokes custody of

the couple’s three children, N.S., C.S., and M.S., who lived with her in 2011.2

Further, paragraph 13 of the agreement provided that Ms. Stokes would claim the

dependency exemption deductions for the children. (Before 2011 petitioner and

Ms. Stokes had claimed the deductions as they had filed jointly.) At the end of


      2
       For privacy reasons, the Court refers to children by their initials. See Rule
27(a)(3).
                                          -3-

2011 petitioner and Ms. Stokes decided that petitioner would claim the

dependency exemption deductions because he provided significant financial

support for the children, and she did not have sufficient income to benefit from the

dependency exemption deductions. Petitioner agreed to share part of the tax

refund with Ms. Stokes.

      Petitioner filed a Form 1040, U.S. Individual Income Tax Return, for 2011,

on which he claimed dependency exemption deductions and the child tax credit for

his three children. Petitioner failed to attach a Form 8332, Release/Revocation of

Release of Claim to Exemption for Child by Custodial Parent, or a similar

statement, to his return. Respondent disallowed the dependency exemption

deductions and the child tax credit.

                                       Discussion

      The Internal Revenue Code allows as a deduction an exemption for each

dependent of a taxpayer in computing taxable income. Sec. 151(c). Section

152(a) defines a dependent as a qualifying child or a qualifying relative of the

taxpayer. In addition to other requirements, a qualifying child must have the same

principal residence as the taxpayer for more than one-half of the tax year. Sec.

152(c). In addition to other requirements, a qualifying relative must have an
                                        -4-

annual gross income of less than the exemption amount, and the taxpayer must

provide over one-half of the qualifying relative’s support for the calendar year in

which the taxable year begins. Sec. 152(d).

      In the case of divorced or separated parents, section 152(e) provides a

special rule to determine which parent is entitled to a dependency exemption

deduction for a child. Generally, a child who is in the custody of one or both of

the child’s parents for more than one-half of the calendar year and receives more

than one-half of his or her support from parents who are divorced or separated or

who live apart at all times during the last six months of the calendar year will be

considered the qualifying child of the custodial parent. Sec. 152(e)(1). Section

152(e)(4)(A) defines the custodial parent as “the parent having custody for the

greater portion of the calendar year.” Section 152(e)(4)(B) defines the

noncustodial parent as “the parent who is not the custodial parent.” Petitioner is

not the custodial parent of his three children with Ms. Stokes, and they did not live

with him during 2011.

      Pursuant to section 152(e), a child will be treated as a qualifying child of the

noncustodial parent rather than of the custodial parent when certain criteria are

met. One of the requirements is that the “custodial parent signs a written

declaration (in such manner and form as the Secretary may by regulations
                                         -5-

prescribe) 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).

      “The declaration required under section 152(e)(2) must be made either on a

completed Form 8332 or on a statement conforming to the substance of Form

8332.” Miller v. Commissioner, 114 T.C. 184, 189 (2000). Form 8332 provides

an effective and uniform way for a custodial parent to make the declaration

required in section 152(e)(2)(A) for the benefit of the noncustodial parent.

Armstrong v. Commissioner, 139 T.C. 468, 472 (2012), aff’d, 745 F.3d 890 (8th

Cir. 2014).

      Petitioner gave credible and uncontradicted testimony that he provided over

one-half of the support for his three children and provided documentation to

support his testimony about the support he provided for the children. His

testimony as to his oral agreement with Ms. Stokes that she would relinquish her

right, as set forth in their separation agreement, paragraph 13, to claim the

dependency exemption deductions for their three children also was credible.

However, petitioner did not obtain a Form 8332, or a similar written statement,

from Ms. Stokes. Without that form, or a similar written statement containing the

information prescribed by section 152(e)(2), this Court is required to find that he
                                         -6-

is not entitled to the dependency exemption deductions. See Swint v.

Commissioner, 142 T.C. 131, 139 (2014).

      Subject to limitations, section 24(a) allows a child tax credit with respect to

a qualifying child of the taxpayer as described in section 152(c) for whom the

taxpayer is allowed a deduction under section 151. Because N.S., C.S., and M.S.

are not qualifying children under section 152(c) for the reasons stated above,

petitioner is not entitled to the child tax credit for 2011. See sec. 24(c)(1); Smith

v. Commissioner, T.C. Memo. 2006-163.

      To reflect the foregoing,


                                                     Decision will be entered for

                                               respondent.
