                          T.C. Memo. 2011-249



                        UNITED STATES TAX COURT



                 RICHARD A. NIXON, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 220-10.1                Filed October 25, 2011.




     Richard A. Nixon, pro se.

     Kimberly L. Clark, for respondent.



                MEMORANDUM FINDINGS OF FACT AND OPINION


     VASQUEZ, Judge:     Respondent determined a $3,450 deficiency

in petitioner’s Federal income tax for 2007.      The issues for

decision are:    (1) Whether petitioner is entitled to dependency



     1
        At trial the Court granted petitioner’s unopposed oral
motion to have the Court remove the small case designation.
                                 - 2 -

exemption deductions for E.N. and M.N.;2 and (2) whether

petitioner is entitled to child tax credits for E.N. and M.N.

                           FINDINGS OF FACT

     Some of the facts have been stipulated and are so found.

The stipulations of facts and the attached exhibits are

incorporated herein by this reference.    Petitioner resided in

Washington when the petition was filed.

     Petitioner was formerly married to Leslie L. Nyquist (Ms.

Nyquist).    They had three children, two of whom, E.N. and M.N.,

are relevant to this case.     Petitioner and Ms. Nyquist were

divorced in 2002.     In connection with their divorce the Superior

Court of Washington, County of Clark, entered a parenting plan

final (parenting plan) and an order of child support (support

order).     The parenting plan designates Ms. Nyquist as the

custodial parent.     During 2007 E.N. and M.N. were minors and

resided with Ms. Nyquist for more than one-half of the year.

     The support order states that petitioner is allowed to claim

Federal income tax exemptions for E.N. for all years and M.N. for

odd-numbered years as long as he is current on his child support




     2
        It is the policy of the Court to refer to a minor by his
or her initials. See Rule 27(a)(3). 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.
                                - 3 -

obligations.3   The support order further provides that the

custodial and noncustodial parents are to sign the Federal income

tax dependency exemption waiver.    Petitioner was current on his

child support obligations during the taxable year 2007.

     Petitioner claimed dependency exemption deductions and child

tax credits for E.N. and M.N. on his Form 1040, U.S. Individual

Income Tax Return, for 2007.    Petitioner attached Form 8332,

Release of Claim to Exemption for Child of Divorced or Separated

Parents, to his return.   Ms. Nyquist had refused to sign the Form

8332.    Petitioner also attached to his Form 1040 copies of three

letters he sent to the Internal Revenue Service (IRS) stating

that for taxable year 2007 Ms. Nyquist had claimed the dependency

exemption deductions and child tax credits for E.N. and M.N. in

violation of the support order.

                               OPINION

I. Burden of Proof

     Petitioner has neither claimed nor shown that he satisfied

the requirements of section 7491(a) to shift the burden of proof

to respondent with regard to any factual issue.    Accordingly,

petitioner bears the burden of proof.    See Rule 142(a).


     3
        The parties stipulated that petitioner is entitled to
claim dependency exemption deductions for E.N. for odd-numbered
years and M.N. for all years. The support order, however,
provides that petitioner is entitled to claim dependency
exemption deductions for E.N. every year and M.N. for odd-
numbered years. This inconsistency does not affect the outcome
of this case.
                                 - 4 -

II. Dependency Exemption Deductions

     Section 151(a) and (c) allows taxpayers an annual exemption

deduction for each “dependent” as defined in section 152.      A

dependent is either a qualifying child or a qualifying relative.

Sec. 152(a).   The requirement is disjunctive, and, accordingly,

satisfaction of either the qualifying child requirement or the

qualifying relative requirement allows the individual to be

claimed as a dependent.    A qualifying child must meet four

requirements for the taxpayer to be allowed the deduction.      See

sec. 152(c)(1)(A)-(D).    The pertinent factor here is the

residence requirement:    the individual must have the same

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

of the taxable year.4    Sec. 152(c)(1)(B).

     E.N. and M.N. resided with Ms. Nyquist for more than one-

half of the taxable year 2007.    Therefore, E.N. and M.N. are not

the qualifying children of petitioner under section 152(c).

     A qualifying relative must satisfy four requirements for the

taxpayer to be allowed the deduction.    See sec. 152(d)(1)(A)-(D).

The two pertinent requirements here are that (1) the taxpayer

must provide over one-half of the individual’s support for the

taxable year and (2) the individual must not be a qualifying




     4
        Respondent does not question that petitioner meets the
relationship, age, and support requirements. See sec.
152(c)(1)(A), (C), (D).
                               - 5 -

child of the taxpayer or of any other taxpayer for the taxable

year.   Sec. 152(d)(1)(C) and (D).

     Petitioner did not substantiate that he provided over one-

half of E.N.’s and M.N.’s support from all sources in 2007.

Petitioner also failed to establish that E.N. and M.N. were not

the qualifying children of any other taxpayer for 2007, e.g., Ms.

Nyquist.   Accordingly, E.N. and M.N. are not petitioner’s

qualifying relatives under section 152(d).

     Section 152(e)(1), however, provides a special rule whereby

a noncustodial parent may be entitled to claim a dependency

exemption deduction for a child notwithstanding the residency

requirement of section 152(c)(1)(B), the support requirement of

section 152(d)(1)(C), and the so-called tie-breaking rule of

section 152(c)(4).   A child will be treated as the noncustodial

parent’s qualifying child or qualifying relative if five

requirements are met.   See sec. 152(e)(1) and (2).   The relevant

requirements here are that the custodial parent sign a written

declaration (in such manner and form as the Secretary may

prescribe) that the custodial parent will not claim the child as

a dependent and that the noncustodial parent attach that

declaration to the noncustodial parent’s return for the taxable

year.   Sec. 152(e)(2)(A) and (B).

     The IRS issued Form 8332 in order to standardize the written

declaration required by section 152(e).   See, e.g., Chamberlain
                                 - 6 -

v. Commissioner, T.C. Memo. 2007-178.      Form 8332 requires a

taxpayer to furnish:   (1) The name of the child; (2) the name and

Social Security number of the noncustodial parent claiming the

dependency exemption deduction; (3) the Social Security number of

the custodial parent; (4) the signature of the custodial parent;

(5) the date of the custodial parent’s signature; and (6) the

year(s) for which the claims were released.     See Miller v.

Commissioner, 114 T.C. 184, 190 (2000).      Although taxpayers are

not required to use Form 8332, any other written declaration

executed by the custodial parent must conform to the substance of

Form 8332.   See id. at 189.    Section 152(e) allows a noncustodial

parent to claim the dependency exemption deduction only when that

parent attaches a valid Form 8332 or its equivalent to a Federal

income tax return for the taxable year for which he or she claims

the dependency exemption deduction.      See Paulson v. Commissioner,

T.C. Memo. 1996-560.

     Ms. Nyquist did not sign the Form 8332 that petitioner

attached to his Form 1040.     Therefore, petitioner failed to

attach a properly executed Form 8332.5

     Accordingly, we find that E.N. and M.N. are not treated as

petitioner’s qualifying children or qualifying relatives under



     5
        Additionally, the letters petitioner attached to his Form
1040 did not constitute a written declaration conforming to the
substance of Form 8332 because none of the letters was signed by
Ms. Nyquist.
                                 - 7 -

section 152(e), and therefore petitioner is not entitled to the

dependency exemption deductions for them.

III. Child Tax Credits

     A taxpayer may claim a child tax credit for “each qualifying

child”.   Sec. 24(a).    A qualifying child for purposes of section

24 is a “qualifying child” as defined in section 152(c) who has

not attained the age of 17.    Sec. 24(c)(1).

     Because we have determined that E.N. and M.N. were not

petitioner’s qualifying children, it follows that petitioner is

not entitled to the child tax credits for them.

     We are not unsympathetic to petitioner’s position.     We also

realize that the statutory requirements may seem to work harsh

results on taxpayers, such as petitioner, who are current in

their child support obligations and who are entitled to claim the

dependency exemption deductions or child tax credits under the

terms of a child support order.    However, we are bound by the

statute as written and the accompanying regulations when

consistent therewith.     Michaels v. Commissioner, 87 T.C. 1412,

1417 (1986); Brissett v. Commissioner, T.C. Memo. 2003-310.

     To reflect the foregoing,


                                             Decision will be entered

                                         for respondent.
