                  T.C. Summary Opinion 2008-54



                     UNITED STATES TAX COURT



                 WILLIAM N. WARD, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 10606-07S.               Filed May 19, 2008.


     Roxanne Grossman and Bradley Ridlehoover (specially

recognized), for petitioner.

     Aaron D. Gregory, for respondent.



     ARMEN, Special Trial 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   Pursuant to section

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



     1
        Unless otherwise indicated, all subsequent section
references are to the Internal Revenue Code in effect for 2004,
the taxable year at issue.
                                   - 2 -

other court, and this opinion shall not be treated as precedent

for any other case.

        Respondent determined a deficiency in petitioner’s Federal

income tax for 2004 of $2,426.       The issues for decision are

whether petitioner is entitled to claim dependency exemption

deductions for two minor children for 2004 and whether petitioner

is also entitled to claim child tax credits with respect to those

children for the year in issue.       For the reasons discussed below,

we sustain respondent’s determination.

                                Background

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

found.       We incorporate by reference the parties’ stipulations of

facts and the accompanying exhibits.

        At the time the petition was filed, William N. Ward

(petitioner) resided in Virginia.

        Petitioner claimed dependency exemption deductions on his

2004 Federal income tax return for two of his children, K.W. and

W.W.2       Petitioner also claimed child tax credits with respect to

K.W. and W.W.

        Petitioner and the children’s mother separated in October

2002 and were divorced in December 2004.       Pursuant to the




        2
        It is the Court’s policy to use initials when referring
to minors.
                                - 3 -

separation agreement,3 joint legal custody of the children was

awarded to petitioner and his ex-wife, although his ex-wife had

primary physical custody.    The separation agreement also

specifically provided that petitioner is entitled to claim K.W.

and W.W. as dependents on his tax returns “so long as

[petitioner] is current in the payment of his child support

obligations”.   Petitioner’s ex-wife signed the separation

agreement.

     Petitioner attached a copy of the separation agreement to

his 2004 Federal income tax return.     Previously, and at least for

the taxable year 2002, petitioner’s ex-wife had signed an IRS

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

Separated Parents, allowing petitioner to claim dependency

exemption deductions for the two children pursuant to the terms

of their divorce.   She did not sign a Form 8332 for 2004, despite

the fact that petitioner was current with his child support

obligations for that year.    In fact, petitioner’s ex-wife claimed

the dependency exemption deductions herself in violation of the

separation agreement.4

     On February 12, 2007, petitioner instituted legal

proceedings in the Virginia Juvenile and Domestic Relations


     3
        The separation agreement was later incorporated into the
final decree of divorce.
     4
        Petitioner’s ex-wife was later ordered by a Virginia
court to amend her tax returns.
                                - 4 -

District Court of Greene County to enforce the terms of the

separation agreement.   As a result, petitioner’s ex-wife paid him

$2,426, an amount equal to the tax effect attributable to the

dependency exemption deductions and child tax credits at issue in

this case.

     On February 13, 2007, respondent issued petitioner the

notice of deficiency from which this case arises.

                             Discussion5

     Section 151 allows deductions for personal exemptions,

including exemptions for dependents of the taxpayer.   See sec.

151(c).   Section 152(a) defines the term “dependent”, in

pertinent part, to include a son or daughter of the taxpayer over

half of whose support for the calendar year was received from the

taxpayer.    Where the parents of a dependent child are divorced or

legally separated, section 152(e)(1) generally confers the

dependency exemption deduction on the parent with legal custody

of the child (the custodial parent).

     As an exception to the general rule, a noncustodial parent

may claim the exemption where the custodial parent executes a

valid written declaration releasing his or her claim to the

exemption and the noncustodial parent attaches that declaration

to his or her Federal income tax return.   Sec. 152(e)(2); sec.



     5
        The issue for decision is essentially legal in nature;
accordingly, we decide it without regard to the burden of proof.
                                 - 5 -

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

34459 (Aug. 31, 1984).6

     The IRS issued Form 8332 to conventionalize the written

declaration requirement of section 152.     See, e.g., Chamberlain

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

taxpayer to agree not to claim a dependency exemption deduction

and to furnish:     (1) The name of the child for whom exemption

claims are released; (2) the years for which the claims are

released; (3) the signature of the custodial parent; (4) the

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

the custodial parent’s signature; and (6) the name and the Social

Security number of the parent claiming the exemption.     See Miller

v. Commissioner, 114 T.C. 184, 190 (2000), affd. on other grounds

sub nom. Lovejoy v. Commissioner, 293 F.3d 1208 (10th Cir. 2002).

Although taxpayers are not required to use Form 8332, any other

written declaration executed by the custodial parent must conform

to its substance.    See id. at 188-189; Chamberlain v.

Commissioner, supra; Neal v. Commissioner, T.C. Memo. 1999-97;

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

order for a document to qualify as a statement conforming to the

substance of Form 8332, it must contain substantially the same



     6
        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).
                               - 6 -

information required by Form 8332.     In particular, the document

must satisfy the signature requirement of section 152(e)(2).”

Miller v. Commissioner, supra at 191.     Section 152(e) is clear;

it allows the dependency exemption to be claimed by a

noncustodial parent only when that parent attaches a valid Form

8332 or its equivalent to a Federal income tax return for the

taxable year in which he or she claims the exemption.    See

Paulson v. Commissioner, T.C. Memo. 1996-560; Peck v.

Commissioner, T.C. Memo. 1996-33; see also Brissett v.

Commissioner, T.C. Memo. 2003-310.

     Congress added the written declaration requirement to

section 152(e) in 1984 to provide more certainty to the “often

subjective and * * * difficult problems of proof and

substantiation” that accompanied dependency exemption deduction

disputes under the prior statutory scheme.    H. Rept. 98-432 (Part

2), at 1498 (1984).   Congress sought clarity as to which of two

divorced parents would be allowed the dependency exemption

deduction for a taxable year and accomplished it by conditioning

the noncustodial parent’s claim upon the written verification of

the custodial parent’s release of the claim.    To preserve

Congress’s goal, we must insist on strict adherence to the

requirements of section 152.   Miller v. Commissioner, supra at

196; Bramante v. Commissioner, T.C. Memo. 2002-228.
                               - 7 -

     The parties agree that petitioner did not attach a signed

Form 8332 to his Federal income tax return for 2004, but that he

did attach a copy of the separation agreement signed by his ex-

wife.   Although a separation or divorce agreement stating that

the dependency exemption deduction belongs to the noncustodial

parent and containing the custodial parent’s signature may serve

as an equivalent to Form 8332 in certain circumstances, the

agreement here does not meet the requirements of section

152(e)(2).   In particular, petitioner’s ex-wife makes no

agreement not to claim the dependency exemption deduction

herself.   The conditionality of petitioner’s entitlement to the

dependency exemption deduction keeps petitioner’s ex-wife’s

signature from constituting a complete waiver of her right to

claim the deduction as the custodial parent.   Miller v.

Commissioner, supra; see sec. 1.152-4T(a), Q&A-3, Temporary

Income Tax Regs., supra.

     In Boltinghouse v. Commissioner, T.C. Memo. 2003-134, the

taxpayers attached to their return a copy of a divorce agreement,

which was signed by both the custodial parent and the

noncustodial parent.   The divorce agreement in that case

unconditionally granted the noncustodial parent the dependency

exemption deduction, and the Court held that the agreement met

all of the requirements of a written declaration under section

152(e)(2) because it conformed in substance to Form 8332.   Unlike
                                 - 8 -

the divorce agreement in Boltinghouse, the separation agreement

in this case is conditional; that is, petitioner is entitled to

claim the exemptions for K.W. and W.W. only if he is current in

his child support obligations.    This condition suggests that

petitioner’s compliance with his support obligations may change

from year to year, such that petitioner’s entitlement to the

dependency exemption deduction for the two children is

potentially subject to change each year.     Although petitioner did

meet the condition in 2004, the Internal Revenue Service cannot

be expected to police divorce decrees and separation agreements.

Because of its conditional nature, the relevant part of the

separation agreement does not constitute an equivalent to Form

8332 and thus does not comport with the requirements of section

152(e)(2).   See also Brissett v. Commissioner, supra (compliance

with terms of separation agreement not sufficient to authorize

dependency exemption deduction without attaching valid Form 8332

or equivalent).

     As for the child tax credits petitioner claimed for K.W. and

W.W., section 24(a) authorizes a child tax credit with respect to

each qualifying child of the taxpayer.     The term “qualifying

child” is defined in section 24(c).      A “qualifying child” means

an individual with respect to whom the taxpayer is allowed a

deduction under section 151, who has not attained the age of 17

as of the close of the taxable year, and who bears a relationship
                               - 9 -

to the taxpayer as prescribed by section 32(c)(3)(B).    Sec.

24(c)(1).   Because petitioner is not allowed a deduction with

respect to either child under sections 151 and 152, it follows

that for the year in issue, neither child is a qualifying child

and petitioner is not entitled to claim a child tax credit for

either child in 2004.

     We note that petitioner has been made whole by his ex-wife’s

$2,426 payment to him as a result of his action in the Virginia

court.   We note further that petitioner has an adequate–-and more

effective--remedy in the Virginia courts should his ex-wife again

be noncompliant with the terms of their separation agreement.

     Finally, although we appreciate petitioner’s concern that

this issue could arise in future years should his ex-wife not be

in compliance with the terms of their agreement, it is well

established that each tax year stands on its own.     See Rose v.

Commissioner, 55 T.C. 28, 32 (1970).

     To reflect our disposition of the disputed issues,


                                         Decision will be entered

                                    for respondent.
