                          T.C. Summary Opinion 2012-121


                         UNITED STATES TAX COURT



                JACKSON M. BROWNING, Petitioner v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent



      Docket No. 7312-10S.                            Filed December 20, 2012.



      Jackson M. Browning, pro se.

      Tamara L. Kotzker and Robert A. Varra, for respondent.



                               SUMMARY OPINION


      GALE, 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


      1
      Unless otherwise indicated all section references are to the Internal Revenue
Code of 1986 as in effect for the year at issue and all Rule references are to the Tax
                                                                         (continued...)
                                            -2-

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

other court, and this opinion shall not be treated as precedent for any other case.

      Respondent determined a $3,250 deficiency in petitioner’s 2007 Federal

income tax. The issues for decision are whether petitioner is entitled to a

dependency exemption deduction, a child tax credit, and a dependent care credit for

his son for the 2007 taxable year.

                                        Background

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

facts, supplemental stipulation of facts, and accompanying exhibits are incorporated

herein by this reference.

      Petitioner’s son, H.B., was born in 2004.2 Petitioner and H.B.’s mother,

Dane Gallardo, never married and were living separately throughout 2007.

Permanent orders issued by the District Court, Adams County, Colorado (State

court), following a hearing held on May 7, 2007, adjudicated petitioner the natural

father of H.B., granted him 38 hours of regular parenting time per week and

additional parenting time on specified holidays, and ordered him to pay monthly

1
 (...continued)
Court Rules of Practice and Procedure. All dollar amounts are rounded to the
nearest dollar.
      2
          Pursuant to Rule 27(a)(3) we refer to minor children by their initials.
                                         -3-

child support to Ms. Gallardo. Petitioner and Ms. Gallardo had split the custody of

H.B. evenly before May 2007 and strictly abided by the custody provisions of the

permanent orders thereafter. Thus, Ms. Gallardo had custody of H.B. for the greater

portion of 2007.

      The permanent orders required petitioner and Ms. Gallardo to alternate

claiming the “tax dependency exemption” for H.B. They granted petitioner the right

to claim the exemption for 2007 and succeeding odd-numbered years and Ms.

Gallardo the right to claim the exemption for 2008 and succeeding even-numbered

years. Petitioner was not entitled to claim H.B. as a dependent for a given year

unless he had paid all court-ordered child support for that year. The permanent

orders were signed by Ms. Gallardo’s attorney indicating they were “approved as to

form” but not by Ms. Gallardo personally.

      Petitioner timely filed his Federal income tax return for 2007. Therein, he

claimed with respect to H.B. a dependency exemption deduction of $3,400; a

$1,000 child tax credit; and a $2,400 dependent care credit. Petitioner did not

submit a Form 8332, Release of Claim to Exemption for Child of Divorced or
                                         -4-

Separated Parents, with his return, nor did he ask Ms. Gallardo to execute such a

form before filing his return.3

      On December 28, 2009, respondent timely issued to petitioner a notice of

deficiency wherein he disallowed the dependency exemption deduction, child tax

credit, and dependent care credit claimed by petitioner for 2007 with respect to H.B.

and determined a $3,250 deficiency.4

      In early 2011 petitioner asked Ms. Gallardo to execute a Form 8332 for 2007.

By letter to petitioner dated February 1, 2011, Ms. Gallardo’s attorney took the

position that Ms. Gallardo was not obligated to execute a Form 8332 for 2007

because petitioner had not paid all the child support required by the permanent

orders. In an effort to compel Ms. Gallardo to execute the form petitioner sought a


      3
        As discussed infra, Form 8332 is the document by which a parent entitled to
a dependency exemption by virtue, inter alia, of having custody of a child for the
greater portion of a calendar year (the “custodial parent”) can release his or her
claim to a dependency exemption to the other parent (the “noncustodial parent”).
See sec. 152(e)(2), (4); sec. 1.152-4(e)(1), Income Tax Regs.
      4
        We note that the amount of the credits disallowed on the face of the notice of
deficiency ($3,400) exceeds the determined deficiency ($3,250). A Form 4549,
Income Tax Examination Changes, accompanying the notice of deficiency credits
petitioner with reporting $1,602 of total tax due on his return; however, the copy of
petitioner’s return stipulated by the parties reports total tax due of $942. A
Schedule of Adjustments attached to the notice of deficiency indicates that the $660
discrepancy likely resulted from respondent’s treating petitioner as having claimed a
dependent care credit of $1,740 rather than the $2,400 shown on the return.
                                            -5-

remedial contempt order from the State court that would direct Ms. Gallardo to

execute a Form 8332 for 2007 with respect to the dependency exemption claim for

H.B.

       Action on petitioner’s request for a remedial contempt order was pending at

the time of trial in this case. After the trial in this case, on the day set by the State

court for the hearing on remedial contempt, Ms. Gallardo executed a Form 8332 on

which she agreed not to claim an exemption with respect to H.B. for 2007. The

form, on which Ms. Gallardo’s signature is dated June 27, 2012, was received into

evidence pursuant to the parties’ stipulation.

                                       Discussion

I.     Dependency Exemption Deduction

       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).

       An individual who meets the four requirements in section 152(c)(1)(A)-(D)

with respect to a taxpayer is a qualifying child of that taxpayer. The pertinent factor

in this case is the residence requirement: to be a qualifying child the individual must

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

taxable year. Sec. 152(c)(1)(B). H.B. did not reside with petitioner for more than
                                          -6-

one-half of 2007. Accordingly, H.B. was not petitioner’s qualifying child under

section 152(c) for that year.

      An individual who meets the four requirements in section 152(d)(1)(A)-(D)

with respect to the taxpayer is a qualifying relative. 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 child of the

taxpayer or any other taxpayer for the taxable year. Sec. 152(d)(1)(C) and (D).

Petitioner did not prove that he provided over one-half of H.B.’s support in 2007.

He also failed to establish that H.B. was not the qualifying child of another taxpayer

for 2007, e.g., Ms. Gallardo. Accordingly, H.B. was not petitioner’s qualifying

relative under section 152(d).

      However, section 152(e) provides a special rule for parents who are

seperated, divorced, or living apart for the last six months of the calendar year under

which a child can be treated as the qualifying child or qualifying relative of the

noncustodial parent5 notwithstanding the residence requirement of section

152(c)(1)(B) or the support requirement of section 152(d)(1)(C). Under section



      5
       Because Ms. Gallardo had custody of H.B. for the greater portion of 2007,
she was the custodial parent, and petitioner was the noncustodial parent, for that
year. See supra note 3.
                                          -7-

152(e)(1) and (2)(A) and (B), a child that receives over one-half of his support

during the calendar year from his parents, and is in the custody of one or both of

his parents for more than one-half of the calendar year,6 shall be treated as the

qualifying child of the noncustodial parent if:

            (A) the custodial parent signs a written declaration (in such
      manner and form as the Secretary may by regulations prescribe) that
      such custodial parent will not claim such child as a dependent for any
      taxable year beginning in such calendar year, and
            (B) the noncustodial parent attaches such written declaration to
      the noncustodial parent’s return for the taxable year beginning during
      such calendar year.

The Internal Revenue Service (IRS) issued Form 8332 to standardize the written

declaration required by section 152(e)(2)(A).7 See Nixon v. Commissioner, T.C.

Memo. 2011-249. The temporary regulation applicable for a taxable year

beginning in 2007 required that a noncustodial parent claiming a dependency

exemption under section 152(e)(2) attach to his or her return either a completed

      6
       We are satisfied, on the basis of petitioner’s testimony and the terms of the
permanent orders, that H.B. received over one-half of his support from, and resided
for more than one-half of the calendar year with, his parents during 2007.
Respondent does not contend otherwise.
      7
        Form 8332 requires: (1) the name of the child; (2) the signature of the
custodial parent confirming his or her consent not to claim an exemption for the
child; (3) the year(s) for which the claim is being released; (4) the date of the
custodial parent’s signature; (5) the custodial parent’s Social Security number; and
(6) the name and Social Security number of the noncustodial parent. See Miller v.
Commissioner, 114 T.C. 184, 190 (2000).
                                          -8-

Form 8332 or a document conforming to the substance of Form 8332.8 Sec. 1.152-

4T(a), Q&A-3, Temporary Income Tax Regs., 49 Fed. Reg. 34459 (Aug. 31,

1984).9

      Before its amendment in 1984, section 152(e) allowed a noncustodial parent

to claim a child as a dependent if he or she provided a threshold amount of support

for the child during the taxable year and the custodial parent failed to clearly

establish that he or she provided more support than the noncustodial parent. See

Deficit Reduction Act of 1984, Pub. L. No. 98-369, sec. 423(a), 98 Stat. at 799;

H.R. Rept. No. 98-432 (Part 2), at 1498 (1984), 1984 U.S.C.C.A.N. 687, 1139;

H.R. Conf. Rept. No. 98-861, at 118 (1984), 1984-3 C.B. (Vol. 2) 1, 372. The

former rule often presented difficult problems of proof and substantiation and

caused the IRS to become involved in disputes between parents over levels of

      8
        The State court permanent orders are not a valid substitute for a Form 8332
in this case because they do not bear Ms. Gallardo’s signature, but only her
attorney’s, approving the documents as to form. See Miller v. Commissioner, 114
T.C. at 192-193.
      9
        The temporary regulation was replaced by a permanent regulation effective
for taxable years beginning after July 2, 2008. T.D. 9408, 2008-2 C.B. (Vol. 1)
323, 329; see also sec. 1.152-4, Income Tax Regs. The permanent regulation
similarly requires a noncustodial parent claiming a dependency exemption to attach
a completed Form 8332 or conforming document to his or her return; however,
under the permanent regulation, a written declaration not on a Form 8332 must be a
document executed for the sole purpose of serving as a written declaration under
sec. 1.152-4, Income Tax Regs.
                                          -9-

support. H.R. Rept. No. 98-432 (Part 2), supra at 1498-1499, 1984 U.S.C.C.A.N.

at 1139-1140. Congress amended section 152(e) to provide the exemption to the

custodial parent (without regard to the parents’ relative support) unless the custodial

parent expressly waives his or her right to the exemption in writing, thereby

providing a bright-line rule which did not require IRS involvement in support

disputes. Id. at 1499, 1984 U.S.C.C.A.N. at 1140; see also Armstrong v.

Commissioner, 139 T.C. ___, ___ (slip op. at 14) (Dec. 19, 2012). Consistent with

congressional intent we have required strict adherence to section 152(e)(2) and the

applicable regulations. See Miller v. Commissioner, 114 T.C. 184, 196 (2000).

      Section 152(e)(2) provides that a noncustodial parent may claim the

dependency exemption for a child if the noncustodial parent attaches the custodial

parent’s signed, written waiver (in a form prescribed by regulations) to his or her

return for the taxable year. We have concluded in a number of cases that a

noncustodial parent who fails to attach a Form 8332 to his or her return as filed is

ineligible to claim the dependency exemption. See Santana v. Commissioner, T.C.

Memo. 2012-49; Espinoza v. Commissioner, T.C. Memo. 2011-108; Chamberlain

v. Commissioner, T.C. Memo. 2007-178; Brissett v. Commissioner, T.C. Memo.

2003-310; Paulson v. Commissioner, T.C. Memo. 1996-560; Presley v.

Commissioner, T.C. Memo. 1996-553. Here, petitioner did not obtain a signed
                                          -10-

Form 8332 from Ms. Gallardo until June 27, 2012,10 after she had already claimed

the dependency exemption for H.B. and the period of limitations for her 2007

taxable year had almost certainly closed.11 Thus, allowing petitioner the deduction

at this juncture would result in the dependency exemption for H.B. having been

deducted twice for 2007.

      For the foregoing reasons, we conclude that petitioner has not satisfied the

requirements of section 152(e)(2) and is therefore not entitled to claim a dependency

exemption for H.B. for 2007.

II.   Child Tax Credit

      Section 24(a) allows a credit for each “qualifying child” of a taxpayer. A

“qualifying child” for this purpose is a qualifying child as defined in section

152(c) who has not attained the age of 17. Sec. 24(c)(1). Since we have

determined above that H.B. was not petitioner’s qualifying child for 2007 within

the meaning of section 152(c), even as augmented by the special rule of section




      10
        In contrast, the document signed by the custodial parent in Armstrong v.
Commissioner, 139 T.C. ___, ___ (slip op. at 4-5) (Dec. 19, 2012), existed at the
time the noncustodial parent filed his return, but was not submitted with the return.
      11
        Respondent contends that the period of limitations for Ms. Gallardo’s 2007
taxable year has closed and that she claimed a dependency exemption for H.B. for
that year. Petitioner has not disputed the foregoing.
                                           -11-

152(e), it follows that petitioner is not entitled to a child tax credit for H.B for

2007.12 See Himes v. Commissioner, T.C. Memo. 2010-97.

III.   Dependent Care Credit

       Section 21 allows a credit to taxpayers with respect to whom there are one

or more “qualifying individuals” equal to a percentage of the “employment-related

expenses” paid by the taxpayer during the taxable year. For purposes of section

21 a “qualifying individual” includes a dependent (as defined in section 152(a)(1))

who has not attained age 13. Sec. 21(b)(1). Generally, “employment-related

expenses” include expenses for household services and care of a qualifying

individual incurred to enable the taxpayer to be gainfully employed. Sec. 21(b)(2).

Because we have determined that H.B. was not petitioner’s dependent under

section 152 for 2007, even taking into account the special rule of section 152(e)

for parents living apart, petitioner is not entitled to a credit under section 21.

Moreover, even if H.B. had qualified as petitioner’s dependent under the special




       12
        While the cross-reference in sec. 24(c)(1) to sec. 152(c) does not expressly
incorporate the special rule of sec. 152(e), the legislative history shows that
Congress intended such an incorporation. See H.R. Conf. Rept. No. 108-696, at 62-
65 (2004), 2004 U.S.C.C.A.N. 1029, 1057-1060; Staff of J. Comm. on Taxation,
General Explanation of Tax Legislation Enacted in the 108th Congress, at 127-128
(J. Comm. Print 2005).
                                         -12-

rule of section 152(e), the dependent care credit is available only to the custodial

parent in these circumstances. See sec. 21(e)(5).

IV.   Conclusion

      While the result with respect to the dependency exemption and child tax

credit may seem harsh in this case, given that petitioner was entitled under the terms

of the State court’s permanent orders to have Ms. Gallardo provide to him a Form

8332 on a timely basis, her failure to do so cannot be remedied in this proceeding.

We are a court of limited jurisdiction, generally lacking equitable powers, and must

apply the Federal tax statutes and regulations as written. As previously discussed,

section 152(e) was intended by Congress to preclude the IRS (and the Federal

courts) from becoming embroiled in disputes between parents over child support

issues and the like. Petitioner’s remedy, if any, for Ms. Gallardo’s failure to comply

with the permanent orders by providing him with a timely executed Form 8332 lies

with the State court. Accordingly, we sustain the deficiency respondent determined

in petitioner’s 2007 income tax.

      To reflect the foregoing,


                                                Decision will be entered for

                                        respondent.
