                  T.C. Summary Opinion 2005-111



                     UNITED STATES TAX COURT



             LAWRENCE PATRICK O’BRIEN, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 2097-04S.            Filed August 1, 2005.



     Lawrence Patrick O’Brien, pro se.

     Richard J. Hassebrock, for respondent.



     POWELL, Special Trial Judge:   This case was heard pursuant

to the provisions of section 74631 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



     1
          Unless otherwise indicated, subsequent section
references are to the Internal Revenue Code in effect for the
year in issue, and Rule references are to the Tax Court Rules of
Practice and Procedure.
                                - 2 -

should not be cited as authority.

     Respondent determined a deficiency of $2,431 in petitioner’s

2001 Federal income tax.   After a concession by respondent, the

issue is whether petitioner is entitled to section 151 dependency

exemption deductions for two of his minor children.   Petitioner

resided in Harrison, Ohio, at the time the petition was filed.

                            Background

     Petitioner and Katherine E. O’Brien (Ms. O’Brien) divorced

on November 6, 1998.   They are the parents of six children.    At

the time of the divorce, five of the children were minors.     In

the divorce decree, petitioner was designated the custodial

parent of one child, and Ms. O’Brien was designated the custodial

parent of the remaining four.

     Petitioner was ordered to pay Ms. O’Brien $325 per child

each month for the four children in her physical custody.    The

divorce decree further ordered that petitioner was entitled to

claim two of the minor children in Ms. O’Brien’s custody as

dependents for Federal tax purposes if his child support

obligation was current and paid in full for the year in which he

was claiming the children as dependents.   Respondent does not

dispute that petitioner’s child support obligation was current

and paid in full for the year at issue.

     Petitioner claimed dependency exemption deductions for three

of his children on his timely filed 2001 Form 1040, U.S.
                                 - 3 -

Individual Income Tax Return.    Petitioner did not attach anything

signed by Ms. O’Brien to his return at the time he filed.

Respondent disallowed these dependency exemption deductions and

issued a notice of deficiency.    Respondent has conceded that

petitioner was the custodial parent for one of the claimed

children in 2001.   Petitioner was not, however, the custodial

parent of the other two children in 2001.    Petitioner argues that

even though he is the noncustodial parent of these two children,

he is entitled to the dependency exemption deductions under the

terms of his divorce decree.

                            Discussion2

A.   Dependency Exemption Deduction

     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.    Under section 152(e)(1),

in the case of a minor dependent whose parents are divorced,

separated under a written agreement, or who have lived apart at

all times during the last 6 months of the calendar year, and

together provide over half of the support for the minor

dependent, the parent having 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.


     2
          We decide the issue in this case without regard to the
burden of proof. See Higbee v. Commissioner, 116 T.C. 438
(2001).
                               - 4 -

     Petitioner is not the custodial parent of the two children

at issue, and thus he is not entitled to the dependency exemption

deductions under section 152(e)(1).    A noncustodial parent may be

entitled to the exemption if one of three exceptions in section

152(e) is satisfied.   The only exception relevant to this case is

contained in section 152(e)(2).   Section 152(e)(2) provides that

a child shall be treated as having received over half of his or

her support 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),3 further provides:

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

B.   Written Declaration Requirement

     Pursuant to the regulations, the Internal Revenue Service

issued Form 8332, Release of Claim to Exemption for Child of

Divorced or Separated Parents, as a way to satisfy the written

declaration requirement of section 152(e)(2).   Form 8332


     3
          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).
                                 - 5 -

instructs the taxpayer to provide (1) the names of the children

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

are released, (3) the signature of the custodial parent to

confirm their 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.    If Form 8332 is not used, a

statement conforming to the substance of Form 8332 must be used.

See sec. 1.152-4T(a), Q&A-3, Temporary Income Tax Regs., supra.

     Petitioner did not attach a written declaration, Internal

Revenue Service form, or other statement signed by Ms. O’Brien to

his return.   See sec. 152(e)(2)(A) and (B).   No such written

declaration has since been provided, and no written declaration

was provided at trial.   Petitioner, therefore, has not

established his entitlement to the two dependency exemption

deductions for the year in question.     See Paulson v.

Commissioner, T.C. Memo. 1996-560.

     Although the divorce decree provides that petitioner is

entitled to the dependency exemption deductions, it cannot by its

own terms determine issues of Federal tax law.     Commissioner v.

Tower, 327 U.S. 280 (1946); Kenfield v. United States, 783 F.2d

966 (10th Cir. 1986); Neal v. Commissioner, T.C. Memo. 1999-97;

Nieto v. Commissioner, T.C. Memo. 1992-296.    When asked whether

he had pursued Ms. O’Brien’s compliance with the terms of the
                               - 6 -

divorce decree in State court, petitioner responded he had not

because he does not want to further burden her with additional

court and attorney fees.   Petitioner also testified, however,

that Ms. O’Brien will not sign a Form 8332.     The Court truly

sympathizes with petitioner’s situation.     Unfortunately, his

remedy in this instance is to pursue Ms. O’Brien’s compliance

with the divorce decree, and any other remedies that may make him

whole, in State court.

     Reviewed and adopted as the report of the Small Tax Case

Division.

                                            Decision will be entered

                                       under Rule 155.
