                  T.C. Summary Opinion 2006-192



                      UNITED STATES TAX COURT



      TERRANCE LASHAWN AND CHRISTY SHIELDS, Petitioners v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 23815-05S.              Filed December 21, 2006.



     Terrance LaShawn and Christy Shields, pro sese.

     James H. Brunson III, for respondent.



     WELLS, 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.   All subsequent section references are to

the Internal Revenue Code in effect for the year in issue, and
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all Rule references are to the Tax Court Rules of Practice and

Procedure.

     Respondent determined a deficiency in Federal income tax in

the amount of $1,762 for petitioners’ 2003 taxable year.   The

issue we must decide is whether petitioners may claim petitioner

Terrance LaShawn Shields’s son as a dependent and receive the

additional child tax credit pursuant to section 24.

                            Background

     Some of the facts and certain exhibits have been stipulated.

The parties’ stipulations of fact are incorporated in this

opinion by reference and are found as facts in the instant case.

At the time of filing the petition in the instant case,

petitioners resided in Eastman, Georgia.

     In this opinion, our references to J.S. are to the

biological son of petitioner Terrance LaShawn Shields and Aundrea

B. Warner (Ms. Warner).   By order dated April 30, 2003, the

Superior Court of Bleckly County awarded primary physical custody

of J.S. to Ms. Warner (custody order).

     Petitioners timely filed their 2003 tax return, claiming

deductions for four exemptions and a child tax credit in the

amount of $1,200 for two children, including J.S.   Respondent

disallowed the dependency exemption deduction for J.S. and

reduced the amount of the child tax credit from $1,200 for two
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children to $200 for one child.   On December 5, 2005, respondent

sent petitioners a notice of deficiency.

                            Discussion

     As a general rule, the Commissioner’s determinations in the

notice of deficiency are presumed correct, and the taxpayer bears

the burden of proving an error.   Rule 142(a); Welch v. Helvering,

290 U.S. 111, 115 (1933).

     In general, a taxpayer is allowed as a deduction an

exemption for each dependent.   Sec. 151(c).   A dependent includes

a son or daughter of the taxpayer over half of whose support for

the calendar year was provided by the taxpayer.    Sec. 152(a)(1).

In the case of a child who receives over half of his support

during the calendar year from his parents1 who are divorced or

separated or who live apart during the last 6 months of the

calendar year, the child is treated as receiving over half of his

support from the parent having custody for the greater portion of

the calendar year.   Sec. 152(e)(1).    Despite the heading “Support

Test in Case of Child of Divorced Parents, Etc.”, section 152(e)




     1
      We infer from the record that Ms. Warner and petitioner
Terrance LaShawn Shields provided over half of J.S.’s support
during 2003 but note that J.S.’s maternal grandmother may have
provided some support.
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applies regardless of whether the parents were married.2   King v.

Commissioner, 121 T.C. 245 (2003).

     Custody is determined by the most recent divorce or custody

decree.   Sec. 1.152-4(b), Income Tax Regs.   A noncustodial parent

may be entitled to a dependency exemption deduction pursuant to

section 151 if the noncustodial parent attaches to his tax return

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

or Separated Parents, or similar written declaration, signed by

the custodial parent, stating that the custodial parent will not

claim the child as a dependent for the calendar year.   Sec.

152(e)(2); Miller v. Commissioner, 114 T.C. 184 (2000).    The

custody order granted primary physical custody to Ms. Warner.

Petitioners did not attach to their 2003 return a Form 8332 or

similar written declaration by Ms. Warner stating that she would

not claim the child as a dependent.    Accordingly, we hold that

petitioners are not entitled to a dependency exemption deduction

for J.S. for taxable year 2003.

     To qualify for the additional child tax credit, the taxpayer

must show that he was entitled to a dependency exemption

deduction for his child.   See sec. 24(a), (c).   As stated above,

petitioners are not entitled to a dependency exemption deduction




     2
      It is unclear from the record whether Ms. Warner and
petitioner Terrance LaShawn Shields were previously married.
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for J.S. for the taxable year in issue.      Accordingly, we hold

petitioners are not entitled to the additional child tax credit

for taxable year 2003.

     To reflect the foregoing,


                                              Decision will be entered

                                         for respondent.
