                  T.C. Summary Opinion 2009-108



                      UNITED STATES TAX COURT



               ROBERT RENE JIMENEZ, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 25190-06S.                Filed July 13, 2009.



     Robert Rene Jimenez, pro se.

     Sarah A. Herson, for respondent.



     GOLDBERG, 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.    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.   Unless otherwise indicated, subsequent

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

Rules of Practice and Procedure.

     The issues for decision are whether for 2004 petitioner is

entitled to:     (1) Dependency exemption deductions for his two

children; (2) a child tax credit; and (3) head of household

filing status.

                              Background

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

The stipulations of facts, attached exhibits, and supplemental

exhibits are incorporated herein by this reference.     Petitioner

resided in California when he filed his petition.

     Petitioner earned a bachelor’s degree in history and

sociology from the University of Arizona and a master’s degree in

sociology from the University of Michigan.     On a date not

provided in the record, petitioner married Claudia Flores de

Jimenez.   They had two children together, F born in 1995 and R

born in 1997.1    Petitioner enrolled in a Ph.D. program at the

University of Michigan, but the couple decided to move to Los

Angeles where petitioner planned to continue his Ph.D. program.

However, because his income was limited to a fellowship stipend,

the plan proved impractical.     Petitioner stopped his Ph.D.



     1
       The names of minor children are redacted.    See Rule
27(a)(3).
                                - 3 -

studies and became active in the local community, becoming, for

example, president of a local parents’ advisory council.

     The marriage deteriorated, causing Ms. Jimenez to move out

of their joint residence on December 1, 2002.    She initially left

the children in petitioner’s custody while she settled into a

residence in an adjacent town 2 to 3 miles away.    During December

Ms. Jimenez stopped by on an irregular schedule to spend time

with the children.    To make her visits more consistent, on

January 4, 2003, the couple signed a separation agreement that

petitioner had prepared.    The agreement provided in pertinent

part that they would maintain joint legal and physical custody of

the children, formalized the times Ms. Jimenez would have

custody, and established petitioner’s home as the children’s

primary residence.    The agreement also provided that Ms. Jimenez

would have to provide child support if her income exceeded

$40,000, which it did not during 2003 or 2004.

     On February 1, 2003, petitioner leased a two-bedroom

apartment on the bottom floor of a two-story 22-unit apartment

complex.   The rental agreement listed the two children as

residing there.    Petitioner’s mother, Rebecca Zavala, was the

manager of the apartment complex and lived with her husband in a

house next door.    In 2004 petitioner’s rent was about $750 per

month.
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     The proximity to the children’s grandmother proved to be

convenient to everyone involved.   On days when petitioner had

custody, Ms. Zavala would drive the children to and from school

or from sports activities after school, and she looked after the

children until petitioner returned home from work.   The schools

were about a 10- to 20-minute drive from her home.

     Similarly, on days when it was Ms. Jimenez's turn to have

custody, Ms. Zavala would continue to drive the children to and

from school or from sports activities; and when it was

petitioner’s turn to have custody, Ms. Jimenez would pick up and

return the children to Ms. Zavala’s home.   When school was out on

holidays or in summer and it was Ms. Jimenez’s day for custody,

Ms. Zavala would typically drop off the children at Ms. Jimenez’s

residence, and Ms. Jimenez would return the children to Ms.

Zavala’s home.

     During the weekends Ms. Zavala would also look after the

children and shuttle them to weekend activities.   For example,

Ms. Zavala served as a team mother in a weekend softball league.

     In February 2003 Ms. Jimenez petitioned the Superior Court

of the State of California for the County of Los Angeles for

dissolution of the marriage.   In August 2003 petitioner filed a

motion for an order to show cause with respect to custody of the

children.   On October 31, 2003, Ms. Jimenez and petitioner each

appeared without an attorney at a hearing before the Los Angeles
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court to determine formal custody arrangements for the children.

Court-appointed counsel for the children also appeared.

     On December 11, 2003, the Los Angeles court issued an order

granting joint legal and physical custody of the children and

splitting the children’s time between the two parents.    In

summary, the court placed custody with Ms. Jimenez on Wednesdays,

Thursdays, and Sundays totaling three-sevenths or 43 percent of

the week while petitioner had custody for the other 57 percent.

     With respect to schooling, the December 11, 2003, Los

Angeles court order decreed that F should remain a student at La

Primaria Elementary until F completed the third grade at which

time the parties should cooperate in sending F to Mulhill

Elementary School.   The court also ordered that R should remain a

student at Mulhill Elementary School.   The court set a followup

conference for January 30, 2004.

     During 2004 petitioner worked in two capacities for the

University of California Cooperative Extension.   In the first

half of the year he served as a center director for at-risk youth

at a set of housing projects, and in the second half of the year

he served as an associate director providing social services

within the same housing projects.   Ms. Jimenez worked for

Hometown Buffet, earning around $8 per hour plus tips.

     The custody arrangements continued into 2004.   Ms. Jimenez

eventually secured representation, and the parties conducted a
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conference on May 7, 2004, with the Los Angeles court.

Petitioner appeared without counsel.   The Los Angeles court

conducted a modification hearing on June 11, 2004, at which

petitioner did not appear.

     On June 17, 2004, the Los Angeles superior court filed an

“Order After Hearing on [Ms. Jimenez’s] Order to Show Cause Re:

Custody, Support, and Attorney’s Fees.”   The court awarded

primary care of the two children to Ms. Jimenez and awarded her

custody for 71 percent of the time and the remaining 29 percent

to petitioner.   The court modified the existing custody order

because of changes in circumstance; namely, the children needed

Ms. Jimenez to help them with their schoolwork during the week,

and a change in Ms. Jimenez’s work schedule allowed her to drop

off and pick up the children from school daily.

     Additionally, the court found that petitioner earned about

$5,000 per month while Ms. Jimenez earned about $900 per month,

resulting in the court’s awarding Ms. Jimenez child support of

$1,094 per month and spousal support of $481 per month.   The

court also found that petitioner was in arrears by $1,575 in

combined child and spousal support.    The court ordered petitioner

to pay $1,000 of Ms. Jimenez’s attorney’s fees and garnished

petitioner’s wages to make up the arrearage and to pay his share

of the attorney’s fees.
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     Petitioner regarded the Los Angeles court’s order as

unlawful and appealed unrepresented to the California Court of

Appeals.   The record is silent with respect to the outcome of the

appeal.

     On July 12, 2004, the Los Angeles superior court entered

minutes to clarify the June 17, 2004, order with respect to

choice of school and vacation permission.    The court awarded Ms.

Jimenez the choice of school and granted her request that R

attend La Primaria Elementary School starting in the fall of

2004.   The court also allowed Ms. Jimenez to take the children

for a 7-day vacation and granted petitioner a similar

uninterrupted 7-day period in July, August, or September as long

as his timing did not interrupt the vacation plans of Ms. Jimenez

or the children’s schooling.

     The months that followed were highly contentious between the

parties.   Petitioner did not take the children on vacation;

however, Ms. Jimenez took the children to Mexico in July 2004.

Petitioner attempted to obtain an ex parte abduction prevention

order from the Los Angeles court, but the court denied his

motion.    At times, petitioner refused to timely return the

children, causing Ms. Jimenez to contact the police.    At other

times petitioner insisted on seeing the children, and he called

the police.   In January 2005 the Los Angeles court served

petitioner with a contempt of court notice for failing to comply
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with the June 17, 2004, court order.    The couple formally

divorced in 2006.

     Petitioner timely filed his 2004 Federal income tax return

as a head of household, claiming two dependency exemption

deductions for the children and a child tax credit of $2,000.    He

reported wages of $51,676.   Ms. Jimenez also filed her own

separate individual 2004 Federal income tax return, claiming the

two children as her dependents.

     Respondent examined petitioner’s 2004 tax return.    Because

Ms. Jimenez was the custodial parent and had claimed the children

as dependents, respondent disallowed petitioner’s dependency

exemption deductions for the two children.    Respondent also

disallowed petitioner’s child tax credit and adjusted

petitioner’s filing status to single, which caused a statutory

reduction in petitioner’s standard deduction amount.    As a

result, respondent issued a notice of deficiency dated September

11, 2006, determining a Federal income tax deficiency for 2004 of

$4,895.

     Petitioner timely petitioned this Court, requesting that the

Court accept his 2004 Federal income tax return as originally

filed.    At the conclusion of the trial respondent requested that

the Court hold the record open for an additional 30 days for the

parties to obtain a copy of the Los Angeles court’s June 17,

2004, order and a copy of the children’s school records for 2004-
                               - 9 -

05.   We granted the request and ordered the parties to meet and

present the documents to the Court in a joint supplemental

stipulation of facts.

      Petitioner timely submitted a copy of the 2004-05 school

records dated June 5, 2008, to respondent; however, petitioner

did not provide a copy of the June 17, 2004, Los Angeles court

order.   Respondent obtained a copy of the order and a copy of the

July 12, 2004, court minutes directly from the Los Angeles court

records department.

      Petitioner and respondent met on June 19, 2008, but could

not agree on a joint supplemental stipulation because petitioner

insisted that the June 17, 2004, Los Angeles court order was

“unlawful”.   On June 23, 2008, respondent filed a motion to

supplement the record and attached a copy of the June 17, 2004,

Los Angeles court order, the July 12, 2004, court minutes, and a

copy of the children’s 2004-05 school records.   On June 24, 2008,

petitioner submitted a motion to supplement the record and

attached a copy of the identical 2004-05 school records, but he

did not include a copy of the Los Angeles court order or minutes.

      This Court granted respondent’s motion to supplement the

record, received the documents into evidence, and denied

petitioner’s request to supplement the record because the Court

had already received the school records into evidence.   The Court

then closed the record.
                             - 10 -

     The school records dated June 5, 2008, show that for the

September 2004 through June 2005 school year F was in the fourth

grade at Twin Lakes Elementary School and R was in the first

grade at La Primaria Elementary School.   Both schools listed Ms.

Jimenez as the custodial parent and petitioner as an additional

contact.

                           Discussion

     In general, the Commissioner’s determination set forth in a

notice of deficiency is presumed correct, and the taxpayer bears

the burden of showing that the determination is in error.    Rule

142(a)(1); Welch v. Helvering, 290 U.S. 111, 115 (1933).     Under

section 7491(a) the burden may shift to the Commissioner

regarding factual matters if the taxpayer produces credible

evidence and meets the other requirements of the section.

Petitioner argued that he satisfied the elements for a burden

shift; however, he did not produce a copy of the June 17, 2004,

Los Angeles court custody order and the clarifying minutes of

July 12, 2004, despite repeated requests by respondent and

despite our grant of an additional 30 days to produce the order.

Accordingly, the burden of proof remains with petitioner.

     Deductions, including dependency exemption deductions, are a

matter of legislative grace, and taxpayers must satisfy the

statutory requirements for claiming the deductions.   INDOPCO,

Inc. v. Commissioner, 503 U.S. 79, 84 (1992); New Colonial Ice
                                - 11 -

Co. v. Helvering, 292 U.S. 435, 440 (1934).     Specifically

relevant here is that taxpayers must maintain records sufficient

to substantiate their claimed deductions.     See sec. 6001; sec.

1.6001-1(a), Income Tax Regs.

     Petitioner asserted two pertinent grounds in his petition to

contest respondent’s determinations:     (1) He maintained a

residence where the children resided for more than one-half of

2004; and (2) he paid at least one-half of the children’s

financial support during 2004.

     In his pretrial memorandum petitioner proposed a third

ground for relief, contending that in the event the Court finds

that Ms. Jimenez and he had approximately the same amount of

custodial time during 2004, then the Court should hold that he is

entitled to claim the children as dependents because he had

higher adjusted gross income during 2004 than did Ms. Jimenez.

With regard to this third contention, the Working Families Tax

Relief Act of 2004, Pub. L. 108-311, secs. 201, 208, 118 Stat.

1169, 1178, amended section 152 and added adjusted gross income

as a consideration under section 152(c)(4)(b)(ii) effective “for

tax years beginning after December 31, 2004.”     Since the year at

issue is 2004, the law on which petitioner relies was not yet in

effect.   Moreover, for the reasons stated below, we find that for

2004 petitioner did not have approximately the same amount of

custodial time as did Ms. Jimenez.
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     A taxpayer may generally claim a dependency exemption

deduction for each dependent, and as relevant here a dependent

includes a son or daughter for whom the taxpayer paid over half

of the child’s support during the year.   Secs. 151(a), (c)(1),

152(a)(1).   However, special rules apply for children of divorced

or separated parents as in the present circumstance.    Sec.

152(e).

     In particular, if a child receives “over half of his support

during the calendar year from his parents” where:   (1) The

parents are “divorced or legally separated under a decree of

divorce or separate maintenance” or “are separated under a

written separation agreement,” (2) the parents lived “apart at

all times during the last 6 months of the calendar year,” and (3)

the “child is in the custody of one or both of his parents for

more than one-half of the calendar year,” then the child is

treated as receiving over half of his support “from the parent

having custody for a greater portion of the calendar year” (the

“custodial parent”), and as a result the custodial parent is

entitled to the dependency exemption deduction.   Sec. 152(e)(1);

Miller v. Commissioner, 114 T.C. 184, 187-189 (2000).

     Petitioner and Ms. Jimenez lived under a judicial separation

agreement for all of 2004; they lived apart at all times during

the last 6 months of 2004; and the children were in the custody

of one or the other of the parents during 2004.   Accordingly,
                              - 13 -

petitioner and Ms. Jimenez met the criteria for section

152(e)(1), and our analysis therefore turns to finding which

parent was the custodial parent for 2004.

     Petitioner failed to maintain a log or a calendar to

corroborate his assertion of greater custody time.   For example,

compare the result in Smith v. Commissioner, T.C. Memo. 2006-163,

where the taxpayer’s failure to corroborate his testimony with

documents, receipts, and witnesses helped defeat the taxpayer’s

claim of custody, with the result in McCullar v. Commissioner,

T.C. Memo. 2003-272, where the taxpayer’s log with detailed

descriptions and multicolored inks and fonts was probative

evidence of the time the taxpayer spent with his child.

     The record before us, namely the December 11, 2003, Los

Angeles court order, petitioner’s testimony, and the testimony of

his mother, Ms. Zavala, establishes that petitioner had custody

of the children for 57 percent of the time during the first 5-1/2

months of the year from January 1 through June 16, 2004.

However, for the next 6-1/2 months from June 17, 2004, the

custody arrangement swung sharply in Ms. Jimenez’s favor.

     The June 17, 2004, Los Angeles court order granted Ms.

Jimenez custody of the children for 71 percent of the time from

June 17, 2004, forward.   The 2004-05 school records corroborate

the shift in custody.   Additionally, Ms. Jimenez had

uninterrupted custody of the children while vacationing with the
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children for 1 or 2 weeks in Mexico during the summer of 2004.

Simple math compels us to find that for 2004 Ms. Jimenez had

custody of the children for more than one-half of 2004.     For all

of the foregoing reasons, we find that Ms. Jimenez was the

children’s custodial parent and petitioner was the noncustodial

parent for 2004.

     However, an exception to the general rule of section

152(e)(1) exists if “the custodial parent signs a written

declaration” stating that the custodial parent “will not claim

such child as a dependent” and the noncustodial parent (defined

as “the parent who is not the custodial parent”) attaches the

declaration to the noncustodial parent’s tax return.   Sec.

152(e)(2); Miller v. Commissioner, supra at 188-189.   The

declaration must be made either on Form 8332, Release of Claim to

Exemption for Child of Divorced or Separated Parents, or on a

statement conforming to the substance of that form.    Miller v.

Commissioner, supra at 189.

     Petitioner did not attach Form 8332 or any declaration to

his 2004 tax return, he did not assert that Ms. Jimenez signed a

release, and no evidence indicates that Ms. Jimenez wanted to

release the dependency exemption deductions.   In fact, she

claimed the children as dependents on her own 2004 Federal income

tax return.
                               - 15 -

     Accordingly, for the foregoing reasons, we sustain

respondent’s determination that petitioner is not entitled to a

dependency exemption deduction for either of the children for

2004.

     With respect to the child tax credit for 2004, a taxpayer

may claim a credit against Federal income tax of up to $1,000 for

each qualifying child of the taxpayer.    Sec. 24(a).   To qualify

for the credit, the “qualifying child” must:    (1) Be an

individual for whom the taxpayer is allowed a dependency

exemption deduction under section 151 for the taxable year, (2)

not have attained age 17 as of the close of the year, and (3)

bear one of the prescribed relationships to the taxpayer,

including, as pertinent here, that of a son or a daughter.    Sec.

24(c).   Because we have already found that petitioner is not

entitled to dependency exemption deductions for the children in

2004, petitioner is not entitled to a child tax credit for either

child for 2004.

     Finally, to qualify for head of household filing status, the

taxpayer must:    (1) Not be married as of the close of the year,

(2) have paid for more than half of the cost of maintaining a

household, and (3) have maintained the household as the principal

place of abode for more than half of the year for a qualifying

person, including a son or daughter.    Sec. 2(b)(1) and (2)(B).

Because we have already found that petitioner’s residence was not
                             - 16 -

the principal place of abode for the children for more than half

of 2004, petitioner is not entitled to head of household filing

status for 2004.

     To reflect our disposition of the issues,


                                          Decision will be entered

                                      for respondent.
