                       T.C. Memo. 2007-239



                      UNITED STATES TAX COURT



                 JAMES C. HARRIS, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 5028-06.              Filed August 22, 2007.



     James C. Harris, pro se.

     Donald E. Edwards, for respondent.




             MEMORANDUM FINDINGS OF FACT AND OPINION


     GOEKE, Judge:   Respondent determined a $1,363 deficiency in

petitioner’s Federal income tax for the taxable year 2003.   The

issue for decision is whether petitioner is entitled to claim a

dependency exemption and a child tax credit for his minor child
                               - 2 -

for the taxable year 2003, pursuant to sections 1511 and 24,

respectively.   We hold that petitioner is not entitled to claim

the dependency exemption or the child tax credit, because (1)

petitioner is not the child’s custodial parent pursuant to

section 152(e); (2) petitioner’s ex-spouse did not release her

claim to the dependency exemption for their minor child for the

taxable year in question; and (3) petitioner’s claim that section

152 violates the Equal Protection Clause of the 14th Amendment to

the Constitution is without merit.

                         FINDINGS OF FACT

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

The stipulation of facts and accompanying exhibits are

incorporated herein by this reference.   At the time of his

petition, petitioner resided in Newalla, Oklahoma.

     Petitioner was divorced from his ex-spouse in December 1997.

Petitioner and his ex-spouse had two children by their marriage,

one of whom was still a minor during the taxable year 2003.    The

terms of the divorce decree granted custody of both children to

petitioner’s ex-spouse, subject to petitioner’s rights of

visitation.   It further established that petitioner would pay

76.6 percent of the child support for both children, based on the




     1
      Unless otherwise indicated, all section references are to
the Internal Revenue Code in effect for the year in issue.
                               - 3 -

child support guideline computation for the State of Oklahoma.

In the calendar year 2003, both children resided with petitioner

for 139 days and with their mother for 226 days.

     Petitioner claimed a dependency exemption and child tax

credit for his minor child on his Federal income tax return for

the taxable year 2003.   Petitioner’s ex-spouse did not sign an

Internal Revenue Service (IRS) Form 8332, Release of Claim to

Exemption for Child of Divorced or Separated Parents, for the

taxable year 2003.   Petitioner did not affix any other written

declaration to his 2003 Federal income tax return that conformed

to the substance of a Form 8332.

     In December 2005, respondent issued a $1,363 notice of

deficiency to petitioner with respect to the dependency exemption

and child tax credit claimed for the taxable year 2003.

Petitioner timely petitioned this Court for redetermination.

                              OPINION

     Section 151 provides a tax exemption as a deduction in

computing taxable income for a taxpayer’s dependents.   Section

152(a) defines “dependent” to include the son or daughter of a

taxpayer, for whom the taxpayer furnished more than one-half the

support for the calendar year in which the taxable year begins.

Section 24 provides a credit against income tax for each

qualified child of a taxpayer who is under 17 years of age and

for whom the taxpayer may claim a deduction under section 151.
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Sec. 24(c)(1)(A) and (B).   Thus, a taxpayer is ineligible for the

child tax credit under section 24 unless he or she is eligible

for the dependency exemption under section 151.

     Where the parents of a dependent child are divorced or

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

exemption onto the parent having custody of the child for the

greater portion of the calendar year (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 for the taxable year.   Sec. 152(e)(2);

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

34459 (Aug. 31, 1984).

     Petitioner does not contend that he complied with the

provisions of section 152 for the taxable year 2003.

Petitioner’s children were in the custody of his ex-spouse for

more than one-half the calendar year; she did not execute a valid

written declaration releasing her claim to the dependency

exemption for the taxable year; and petitioner did not attach

such a declaration to his Federal income tax return.   Instead,

petitioner argues that section 152(e) denies noncustodial parents

equal protection under the 14th Amendment to the Constitution by

granting the dependency exemption to a custodial parent by
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default, regardless of the percentage of support furnished by

each parent.    Petitioner’s claim is without merit.

     All deductions, including dependency exemptions, are allowed

as a matter of legislative grace.        New Colonial Ice Co. v.

Helvering, 292 U.S. 435, 440 (1934).       Congress has the power to

condition, limit, or deny deductions in arriving at the net

income it chooses to tax.     Helvering v. Indep. Life. Ins. Co.,

292 U.S. 371, 381 (1934).    Congress may make distinctions among

taxpayers as long as they are not arbitrary or capricious.

Hamilton v. Commissioner, 68 T.C. 603, 608 (1977).

     The 14th Amendment to the Constitution of the United States

does not apply to Federal statutes.        Labay v. Commissioner, 55

T.C. 6, 14 (1970), affd. 450 F.2d 280 (5th Cir. 1971); Cole v.

Commissioner, T.C. Memo. 1975-144.       With regard to Federal

statutes, the Due Process Clause of the 5th Amendment embraces

the principles of the Equal Protection Clause of the 14th

Amendment.     Johnson v. Robison, 415 U.S. 361, 364-365 n.4 (1974);

Caputi v. Commissioner, T.C. Memo. 2004-283.       Under the Fifth

Amendment, a statutory classification generally is valid if it

bears a rational relation to a legitimate Government interest and

it does not implicate a suspect classification or interfere with

a fundamental right, and legislatures have especially broad

latitude in creating classifications and distinctions in tax

statutes.    Regan v. Taxation With Representation of Wash., 461
                               - 6 -

U.S. 540, 547 (1983).   The rational basis standard dictates that

a statutory provision does not violate equal protection “if any

state of facts rationally justifying it is demonstrated to or

perceived by the courts.”   United States v. Md. Savings-Share

Ins. Corp., 400 U.S. 4, 6 (1970).   Moreover, a classification

that has some reasonable basis does not violate the Constitution

simply because it “is not made with mathematical nicety, or

because in practice it results in some inequality.”     Lindsley v.

Natural Carbonic Gas Co., 220 U.S. 61, 78 (1911); Bryant v.

Commissioner, 72 T.C. 757, 764 (1979).     This case does not

involve a fundamental right or suspect class.

     Prior to 1984, a noncustodial parent could claim a

dependency exemption pursuant to section 152(e) if he or she

provided $1,200 or more for the support of a child and the

custodial parent could not clearly establish that he or she

provided more support than the noncustodial parent.    This

provision required the IRS to wade into disputes between parents

“who both [claimed] the dependency exemption based on providing

support over the applicable thresholds.”    H. Rept. 98-432 (Part

1), at 197 (1984).   Thus, Congress added the written declaration

requirement to section 152(e) to eliminate the role of the IRS as

mediator between divorced or separated parents, provide more

certainty to the “often subjective and * * * difficult problems

of proof and substantiation” that accompanied dependency
                                  - 7 -

exemption disputes, and clarify which of two divorced parents

would receive the dependency exemption.         Knight v. Commissioner,

T.C. Memo. 1992-710, affd. 29 F.3d 632 (9th Cir. 1994); H. Rept.

98-432 (Part 2), supra at 1498.      Because section 152(e) eases the

administrative burden of the IRS and thereby advances enforcement

of the statute in a rational way, it furthers a legitimate

congressional purpose.   Knight v. Commissioner, supra.

Therefore, section 152(e) does not violate the Due Process Clause

of the Fifth Amendment to the Constitution of the United States.

Id.   Accordingly, we hold that petitioner is not eligible for a

dependency exemption or a child tax credit for the taxable year

2003.

      To reflect the foregoing,



                                          Decision will be entered

                                  for respondent.
