                  T.C. Summary Opinion 2001-66



                     UNITED STATES TAX COURT



            DAVID ALPHONSE DE STROOPER, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 3195-00S.                        Filed May 7, 2001.


     David Alphonse De Strooper, pro se.

     Ross M. Greenberg, for respondent.



     PANUTHOS, Chief Special Trial Judge:   This case was heard

pursuant to the provisions of section 7463 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 should not be cited as authority.    Unless otherwise

indicated, subsequent section references are to the Internal

Revenue Code in effect for the year in issue.
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     Respondent determined a deficiency in petitioner’s 1997

Federal income tax in the amount of $1,188.    The issues for

decision are (1) whether petitioner is entitled to a dependency

exemption deduction for his son, and (2) whether petitioner is

entitled to head-of-household filing status.

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

found.    The stipulation of facts and attached exhibits are

incorporated herein by this reference.    At the time of filing the

petition, petitioner resided in Clearwater, Florida.

Background

     Petitioner was married to Aimee C. De Strooper (Mrs. De

Strooper) in 1989.    Petitioner and Mrs. De Strooper had one

child, Aaron D. De Strooper (Aaron), who was born June 15, 1990.

In the fall of 1993, petitioner and Mrs. De Strooper executed a

marital settlement agreement (the agreement) which was filed with

the Circuit Court of the Sixth Judicial Circuit for Pinellas

County.    The agreement recognized that petitioner and Mrs. De

Strooper were living apart and desired to settle their respective

property rights and all matters relating to child custody,

visitation, and support for their child.

     The agreement provided that petitioner and Mrs. De Strooper

would share responsibility in decisions relating to the health

and welfare of their son Aaron.    The agreement also provided as

follows:
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     9.     CHILD CUSTODY AND VISITATION

          The wife shall have the primary residential care
     of the minor child with the parties enjoying shared
     parental responsibility as outlined hereinabove.

          The husband shall have reasonable and liberal
     rights of visitation that shall include a schedule as
     follows:

     1. The husband shall have from every Wednesday evening
     through Saturday morning.

The agreement further provided for a detailed schedule of

physical custody during holidays and special occasions.

Petitioner was required to pay $475 per month for support of

Aaron.    Petitioner was also required to pay for medical insurance

for Aaron as well as any medical bills.    Respondent has not

raised any questions that support and other payments were not

made pursuant to the agreement.

     On his 1997 Federal income tax return, petitioner claimed

head-of-household filing status and a dependency exemption

deduction for his son.    In the notice of deficiency, respondent

disallowed the claimed dependency exemption deduction and also

adjusted the filing status from head-of-household to single

because Mrs. De Strooper had custody of Aaron.    Petitioner

asserts that he is entitled to the dependency deduction and the

head-of-household filing status since his son lived with him half

the time and he paid more for his son’s support than Mrs. De

Strooper.    He further argues that the language in the marital
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settlement agreement providing primary residential care to Mrs.

De Strooper is merely to comport with Florida custody law.

Discussion

     A.   Dependency Exemption Deduction for Aaron

     Section 151 allows a taxpayer to deduct an exemption amount

for each dependent as defined in section 152.   The term

“dependent” includes a taxpayer’s son over half of whose support

for the calendar year is received from the taxpayer.    See sec.

152(a)(1).

     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 a 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); see sec. 1.152-4(c), Income Tax Regs.

     Custody is determined by the terms of the most recent

custody decree if there is one in effect.   See sec. 1.152-4(b),

Income Tax Regs.   The agreement provides that Mrs. De Strooper
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has the “primary residential care of the minor child”.   Based on

the agreement, Aaron spent more than one-half of 1997 with Mrs.

De Strooper.   Therefore, Mrs. De Strooper is the custodial parent

and petitioner is the noncustodial parent of Aaron for 1997.

     Petitioner, as the noncustodial parent, is allowed to claim

a child as a dependent only if he meets one of three statutory

exceptions under section 152(e).   The noncustodial parent can

claim the dependency exemption deduction (1) if the custodial

parent releases claim to the exemption for the year, (2) if a

multiple-support agreement is in effect, or (3) if the decree of

divorce was executed prior to 1985, the decree expressly provides

that the noncustodial parent is entitled to the deduction, and

the noncustodial parent provides at least $600 for the support of

the child.   See sec. 152(e)(2), (3), (4); sec. 1.152-4T,

Temporary Income Tax Regs., 45 Fed. Reg. 34459 (Aug. 31, 1984).

     None of the exceptions applies to this case.   The record

does not indicate that Mrs. De Strooper released her claim to the

exemption.   Further, a multiple-support agreement was not in

effect, and the decree of divorce was executed after 1984.   While

we believe that petitioner provided more than half of Aaron’s

support, we are bound by the rigors of section 152(e).

Therefore, we sustain respondent’s determination.
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       B.     Filing Status

       As relevant herein, an individual qualifies as a head of a

household if such individual (1) is not married at the close of

his taxable year and (2) maintains as his home a household that

constitutes for more than one-half of such taxable year the

principal place of abode, as a member of such household, of his

son.    See sec. 2(b)(1)(A).     The term “principal place of abode”

is synonymous with “home”.       See sec. 1.2-2(c)(1), Income Tax

Regs.

       At trial, petitioner claimed that Aaron resided with him for

half of 1997.       The agreement provides that petitioner has custody

of Aaron for only 3 nights per week, and at best, 3 days per

week.       There is nothing in the record to indicate that Aaron

resided with petitioner for more than one-half of 1997.         We hold

that petitioner does not qualify for head-of-household filing

status for taxable year 1997.

       Reviewed and adopted as the report of the Small Tax Case

Division.

       To reflect the foregoing,

                                                Decision will be entered

                                           for respondent.
