                  T.C. Summary Opinion 2004-154



                     UNITED STATES TAX COURT



              CLYDE EVERTON ALLSOPP, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 17561-03S.             Filed November 8, 2004.


     Clyde Everton Allsopp, pro se.

     Marc Caine, 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.
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     Respondent determined a deficiency in petitioner’s Federal

income tax of $1,912 for the taxable year 1998.

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

entitled to two dependency exemptions for his two children,

Everton Allsopp and Aldwyn Allsopp, for the taxable year 1998;

and (2) whether petitioner is entitled to a child tax credit for

the taxable year 1998.

     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

Brooklyn, New York, on the date the petition was filed in this

case.

     On December 12, 1978, Clyde Allsopp (petitioner), who is

currently an employee of the Internal Revenue Service, and Audrey

Allsopp (Ms. Allsopp) were married in Brooklyn, New York.    During

the marriage, petitioner and Ms. Allsopp had three children,

Everton Allsopp (Everton), born February 27, 1979, Aldwyn Allsopp

(Aldwyn), born August 26, 1981, and Clyde Allsopp, Jr. (Clyde,

Jr.), born October 27, 1991.

     On April 24, 1992, a divorce proceeding was commenced in the

Supreme Court of the State of New York, County of Kings.    A

divorce was granted on May 15, 1996.   On May 23, 1997, a hearing

regarding open issues was held before the Honorable Ira B.

Harkavy.   These open issues were either stipulated by the parties
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or tried before the Honorable Ira B. Harkavy (Judge).     The Judge

issued a decision dated December 2, 1997, (the decision)

regarding the open issues.   The decision was not signed by Ms.

Allsopp, only the Judge.   On page 12 of the decision, under the

paragraph titled “TAX BENEFITS”, the Judge addressed the issue of

the deductions and credits regarding the children of the

marriage.   The paragraph reads as follows:

     As long as Mr. Allsopp shall make his child support
     payments, both parties shall share the child deduction
     exemptions and the child care credit, unless the parties
     agree differently. For the even years, Ms. Allsopp shall
     have Clyde as her income tax exemption and child care
     deduction, and Mr. Allsopp shall have Everton and Aldwyn as
     his income tax exemption. In odd years, the parties shall
     switch the exemptions and child care deduction. Upon the
     loss of an exemption or child care deduction, the parties
     shall arrange, that by the switching on even and odd years
     that both get equal use of any tax deductions, exemptions or
     child care benefits.


     On or about January 27, 1999, petitioner filed his Form

1040, U.S. Individual Income Tax Return, for the 1998 taxable

year.   There was no attachment regarding any waiver or

declaration, such as a Form 8332, Release of Claim to Exemption

for Child of Divorced or Separated Parents, executed by Ms.

Allsopp stating that she was releasing her claim to exemption of

their children.   In the 1998 return, petitioner claimed four

exemptions and three dependents, two of whom, Everton and Aldwyn,

were the children of the marriage with Ms. Allsopp.   The third

child claimed was Sheclyia S. Allsopp (Sheclyia); this dependent
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is not an issue in the present case.       Petitioner claimed the

child tax credit in the amount of $800, $400 of which applied to

Sheclyia.   Respondent allowed the exemption and child tax credit

with regard to Sheclyia.

      Ms. Allsopp claimed Everton and Aldwyn as her dependents for

the 1998 taxable year.    During the 1998 taxable year, petitioner

did not have physical custody of Everton, Aldwyn, and Clyde, Jr.

Neither petitioner nor Ms. Allsopp executed or signed a Form

8332, or a similar declaration for the 1998 tax year.

      Respondent issued a notice of deficiency to petitioner in

which respondent disallowed two of petitioner’s claimed

exemptions for the 1998 taxable year as well as a portion of the

child tax credit in the amount of $400.

                              Discussion

I.   Dependency Exemption Deduction

      A dependency exemption generally is allowed under section

151(a) for each dependent of a taxpayer.       Sec. 151(a), (c)(1).

In general, 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).   A special rule applies to

taxpayer-parents (a) who are divorced, who are separated, or who

live apart for at least the last 6 months of the calendar year,

and (b) whose child is in the custody of one or both parents for

more than half of the year.    Sec. 152(e)(1).     Under this rule, if
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the child receives more than half his support during the year

from his parents, 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.

Under section 152(e)(2) an exception to this special rule exists

which may entitle the noncustodial parent to the dependency

exemption.   For the exception to apply, the custodial parent must

sign a written declaration releasing his or her claim to the

exemption, and the noncustodial parent must attach the

declaration to his or her tax return.   Id.   A written declaration

releasing a taxpayer’s claim to a dependency exemption may apply

to one year, a number of specified years, or all future years, as

specified in the declaration.   Sec. 1.152-4T(a), Q&A-4, Temporary

Income Tax Regs., 49 Fed. Reg. 34459 (Aug. 31, 1984).

     To meet the requirements of section 152(e)(2), the written

declaration, if not made on the official form provided by the

Internal Revenue Service, “shall conform to the substance of such

form.”   Sec. 1.152-4T(a), Q&A-3, Temporary Income Tax Regs., 49

Fed. Reg. 34459 (Aug. 31, 1984).   The form provided by the

Service, Form 8332, calls for the following information:    (1) The

name of the child or children for whom an exemption claim is

released; the applicable tax year or years for which the claims

are released; (2) the custodial parent’s signature and the date
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of signature; (3) the custodial parent’s Social Security number;

(4) the noncustodial parent’s name; and (5) the noncustodial

parent’s Social Security number.

     Petitioner argues that he attached a copy of the December 2,

1997, decision to his return and thus met the requirements of

section 152(e)(2).   Respondent argues that the decision was not

attached to petitioner’s return, and, in the alternative, even if

the decision had been attached to the return, that it does not

meet the requirements of section 152(e)(2) because (a) the

decision is conditional, (b) the decision does not state with

specificity the applicable tax year or years for which petitioner

is entitled to the dependency exemption, and (c) the decision is

neither signed by the custodial nor noncustodial parent and as

such does not satisfy the statutory requirements of section

152(e)(2).

     Upon the basis of the record, this Court finds that

petitioner has not shown that he attached the decision to his

1998 Federal income tax return as required by section

152(e)(2)(B).   However, even if petitioner had proven that the

decision was attached to his 1998 Federal income tax return, this

Court finds that the decision does not meet the requirements of

section 152(e)(2).

     In the instant case, petitioner admits that he was Everton

and Aldwyn’s noncustodial parent during the taxable year 1998.
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It follows, therefore, that petitioner is entitled to the

dependency exemption only if he attached to his 1998 tax return a

written declaration as required under section 152(e)(2).

Petitioner contends that the decision, which he “thinks” he

attached to his 1998 tax return, constitutes a written

declaration under section 152(e)(2).

     In Boltinghouse v. Commissioner, T.C. Memo. 2003-134, the

taxpayers attached to their return a copy of a separation

agreement, which was signed by both the custodial and

noncustodial parents.   The Court held that the separation

agreement met the requirements of a written declaration under

section 152(e)(2) because it conformed in substance to Form 8332.

     However, the decision in the present case is not analogous

to the separation agreement in Boltinghouse.

     The decision in the present case was not signed by the

custodial parent.   Section 152(e)(2) expressly provides that the

noncustodial parent may claim the dependency exemption for a

child only if “the custodial parent signs a written declaration”.

Complying with the signature requirement of 152(e)(2) is critical

to the successful release of the dependency exemption.   See Neal

v. Commissioner, T.C. Memo. 1999-97; Paulson v. Commissioner,

T.C. Memo. 1996-560; White v. Commissioner, T.C. Memo. 1996-438.

     Language in a divorce decree purportedly giving a taxpayer

the right to an exemption does not entitle the taxpayer to the
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exemption if the signature requirement of section 152(e)(2) is

not met.   Miller v. Commissioner, 114 T.C. 184 (2000), affd. sub

nom. Lovejoy v. Commissioner, 293 F.3d 1208 (10th Cir. 2002).

Although the decision, by and through the TAX BENEFITS provision,

provides that petitioner is entitled to the dependency exemptions

for Everton and Aldwyn, it is well settled that State courts, by

their decisions, cannot determine issues of Federal tax law.       See

Commissioner v. Tower, 327 U.S. 280 (1946); Kenfield v. United

States, 783 F.2d 966 (10th Cir. 1986); Nieto v. Commissioner,

T.C. Memo. 1992-296.   Unfortunately, regardless of what is stated

in the State court decision, the law is clear that petitioner is

entitled to the child dependency exemptions in 1998 only if he

complied with the provisions of section 152(e)(2).    Petitioner

has failed in this regard.   It follows, therefore, that the

exception set forth in section 152(e)(2) does not apply and that

the general rule of section 152(e)(1) does apply.    Accordingly,

petitioner is not entitled to deductions for dependency

exemptions for Everton and Aldwyn.     Sec. 152(e)(1); Miller v.

Commissioner, supra.   Respondent’s determination on this issue is

sustained.
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II.    Child Tax Credit

       In addition to the exemption under section 151(a), a child

tax credit generally is allowed to a taxpayer for each qualifying

child of the taxpayer.    Sec. 24(a).    Among other requirements, a

qualifying child is an individual for whom the taxpayer is

allowed a dependency exemption under section 151.      Sec.

24(c)(1)(A).    For the reasons stated above, petitioner may not

claim a dependency exemption for Everton or Aldwyn under section

151, and, therefore, he may not claim a child tax credit with

respect to either of them.    Respondent’s determination on this

issue is sustained.

III.    Conclusion

       We have considered all of the other arguments made by the

parties, and, to the extent that we have not specifically

addressed them, we conclude they are without merit.

       Reviewed and adopted as the report of the Small Tax Case

Division.

                                        Decision will be entered

                                for respondent.
