                  T.C. Summary Opinion 2003-132



                     UNITED STATES TAX COURT



                  JOSEPH F. LISI, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 13503-01S.            Filed September 25, 2003.



     James J. Lombardi III, for petitioner.

     Michael J. Proto, 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.    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.
                               - 2 -

     Respondent determined a deficiency in petitioner’s Federal

income tax of $770 for the taxable year 1999.

     The issues for decision are:    (1) Whether petitioner is

entitled to a dependency exemption deduction, and (2) whether

petitioner is entitled to itemized deductions not claimed on his

return.

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

The stipulation of facts and the attached exhibits are

incorporated herein by this reference.    Petitioner resided in

Coventry, Rhode Island, on the date the petition was filed in

this case.

     Petitioner and his former wife, Karen A. Lisi (Ms. Lisi),

were divorced in 1980.   During the year in issue, their son,

Joseph Edward Lisi, resided in Massachusetts with Ms. Lisi.

During that year, petitioner paid child support for Joseph in the

amount of $1,633.   Joseph, who turned 21 years of age on July 26,

1999, was enrolled as a full-time student.    Joseph earned wages

of approximately $10,000 to $11,000 during 1999, which he used

for his support.

     Petitioner filed a Federal income tax return for 1999.      As

is relevant here, on this return petitioner claimed a dependency

exemption deduction for Joseph; he reported income from gambling

of $1,800; and he claimed the standard deduction of $4,300 in

lieu of any itemized deductions.    In the statutory notice of
                                - 3 -

deficiency, respondent disallowed the dependency exemption

deduction for Joseph.

     The first issue for decision is whether petitioner is

entitled to a dependency exemption deduction.      A deduction

generally is allowed under section 151(a) for each dependent of a

taxpayer.   Sec. 151(a), (c)(1).    Subject to exceptions and

limitations not relevant here, a child of a taxpayer is a

dependent of the taxpayer only if the taxpayer provides over half

of the child’s support for the taxable year.      Sec. 152(a).

     It is clear in this case that petitioner did not provide

over half of Joseph’s support during 1999:      Petitioner paid only

$1,633 in child support during that year.      In addition to any

other sources of support, Joseph received at least $10,000 per

year from his employment, which he used for his own support.

Petitioner therefore is not entitled to a dependency exemption

deduction for Joseph in 1999.      Id.

     Petitioner argues that a separation agreement he entered

into with Ms. Lisi prior to their divorce entitles petitioner to

the dependency exemption deduction.      There is a special rule

which applies if a child receives over half of his support during

the year from his parents, where (a) the parents are divorced,

separated, or live apart from their spouses for at least the last

6 months of the calendar year, and (b) the child is in the

custody of one or both parents for more than half of the year.
                                    - 4 -

Sec. 152(e)(1).     Under this rule, the parent with custody of the

child for the greater portion of the year (the “custodial

parent”) generally is treated as having provided over half of the

child’s support, regardless of which parent actually provided the

support.    Id.    One exception to this special rule exists which

provides that the noncustodial parent is treated as having

provided over half of the child’s support.       Sec. 152(e)(2).   For

the exception to apply, the custodial parent must sign a written

declaration releasing his or her claim to the deduction, and the

noncustodial parent must attach the declaration to his or her tax

return.    Id.    Assuming that petitioner and Ms. Lisi together

provided over half of Joseph’s support, petitioner is not treated

as having provided over half of Joseph’s support during 1999

because no signed written declaration was attached to

petitioner’s return.      Id.    Furthermore, we note that the special

rules of section 152(e) do not apply where a child is emancipated

from his parents and is no longer considered to be in the

“custody” of either one.        Sec. 152(e)(1)(B); Kaechele v.

Commissioner, T.C. Memo. 1992-457.

     The second issue for decision is whether petitioner is

entitled to itemized deductions not claimed on his return.

Petitioner argues that he (1) paid deductible State income taxes

of $2,242, (2) paid deductible automobile taxes of approximately

$200, (3) had gambling losses of approximately $2,200, deductible
                                 - 5 -

to the extent of his winnings1 of $1,800, and (4) made deductible

cash charitable contributions of $600.     Expenses of these types

are deductible, if at all, as itemized deductions.     Secs. 62(a),

63(d), 165(a), 165(d), 164(a)(1) and (2), 170(a)(1).

     A taxpayer must keep records sufficient to establish the

amounts of the items required to be shown on his Federal income

tax return.   Sec. 6001; sec. 1.6001-1(a), (e), Income Tax Regs.

In the event that a taxpayer establishes that a deductible

expense has been paid but is unable to substantiate the precise

amount, we generally may estimate the amount of the deductible

expense bearing heavily against the taxpayer whose inexactitude

in substantiating the amount of the expense is of his own making.

Cohan v. Commissioner, 39 F.2d 540, 543-544 (2d Cir. 1930).      We

cannot estimate a deductible expense, however, unless the

taxpayer presents evidence sufficient to provide some basis upon

which an estimate may be made.     Vanicek v. Commissioner, 85 T.C.

731, 743 (1985).

     Deductions for charitable contribution are subject to

further substantiation requirements.     Sec. 170(a)(1).   Generally,

a deduction for charitable contributions must be substantiated

with written records.   Sec. 1.170A-13, Income Tax Regs.

Deductions for contributions of $250 or more are disallowed in


     1
      Under sec. 165(d), a taxpayer’s losses from gambling are
deductible only to the extent of the taxpayer’s gains from
gambling.
                                - 6 -

the absence of a contemporaneous written acknowledgment of the

contribution by the donee.    Sec. 170(f)(8); sec. 1.170A-13(f),

Income Tax Regs.

     Petitioner provided substantiation for his payment of State

income taxes by the Form W-2, Wage and Tax Statement, which was

attached to his 1999 return and which reflects State income tax

withholding in the relevant amount.     Petitioner, however, failed

to provide substantiating documents for any of the other itemized

deductions, including the claimed cash charitable contributions.

Although petitioner’s testimony at trial provided little detail

concerning these contributions, he did state that he paid

approximately $300 to each of two charities--his church and the

Salvation Army.    These contributions are allowable only in the

presence of the required written records.    Sec. 170(a)(1),

(f)(8); sec. 1.170A-13, Income Tax Regs.    Because petitioner has

provided no such records, we conclude that he has not met the

substantiation requirements for the claimed charitable

contributions and that he is not entitled to any deduction

therefor.   The amount of the remaining claimed deductions for

gambling losses and automobile taxes, together with the

substantiated State income tax payment, totals $4,242.    Because

the standard deduction of $4,300 exceeds this amount, even if the

remaining claimed deductions were substantiated, the itemized

deductions would be of no benefit to petitioner.
                             - 7 -

    Reviewed and adopted as the report of the Small Tax Case

Division.

                                     Decision will be entered

                             for respondent.
