                        T.C. Memo. 2010-97


                      UNITED STATES TAX COURT



             LESLIE AND LINDA HIMES, Petitioners v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 13885-08.              Filed May 4, 2010.



     Leslie and Linda Himes, pro se.

     Lisa K. Hunter, for respondent.



             MEMORANDUM FINDINGS OF FACT AND OPINION


     PARIS, Judge:   Respondent determined a deficiency of $3,618

in petitioners’ Federal income tax for 2006.    After concessions,1

the issue for decision is whether petitioners are entitled to



     1
      The notice of deficiency disallowed exemptions   and credits
related to a third dependent, AT, petitioners’ minor   grandchild.
The parties filed a stipulation of settled issues on   June 22,
2009, resolving all issues related to AT in favor of   petitioners.
                                -2-

dependency exemption deductions and child tax credits under

sections 1512 and 24, respectively, for Leslie Himes’

(petitioner’s) sons, MH3 and GH, from a former marriage.

                         FINDINGS OF FACT

     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.   Petitioners resided in

Nebraska at the time the petition was filed.

     Before his marriage to Linda Himes, petitioner was married

to Ms. Barbara Wyke (Ms. Wyke), formerly Barbara Himes.

Petitioner and Ms. Wyke have two children, MH, who was born in

1989, and GH, who was born in 1990.

     On September 11, 1995, petitioner and Ms. Wyke divorced.

The District Court of Saline County, Nebraska, issued a decree of

dissolution of marriage (divorce decree) awarding custody of the

two children to Ms. Wyke.   Petitioner was awarded liberal

visitation rights and ordered to make child support payments to

Ms. Wyke.   That court granted petitioner the right to claim a

dependency exemption deduction for GH on Federal and State tax

returns for 1995 and all subsequent years.   The District Court




     2
      Section references are to the Internal Revenue Code of
1986, as amended, and all Rule references are to the Tax Court
Rules of Practice and Procedure, unless otherwise indicated.
     3
      This Court refers to minor children by their initials.     See
Rule 27(a)(3).
                                 -3-

judge and petitioner’s attorney signed and executed the divorce

decree.

     On January 22, 1999, the District Court of Saline County,

Nebraska, issued an order (modified decree) modifying the divorce

decree.   The modified decree maintained custody of the children

with Ms. Wyke and continued petitioner’s visitation privileges.

The modified decree still required the petitioner to make child

support payments to Ms. Wyke.   However, the modified decree

significantly changed petitioner’s right to claim dependency

exemption deductions.   The modified decree provided that

petitioner was entitled to claim the dependency exemption

deduction for both children if he was current on his child

support payments at the conclusion of the tax year.   The decree

provided the following process for transferring the exemption.

First, Ms. Wyke would deliver a release to the exemption to the

county clerk.   Second the clerk, upon verification that all child

support payments were made, would deliver the release to

petitioner.    The modified decree was signed only by the District

Court judge.

     In 1999 Ms. Wyke, without permission of the State court,

left Nebraska with the two children.   She did not provide a

forwarding address to petitioner, and he subsequently lost all

contact with his children.   Despite this petitioner continued to

make regular child support payments.   Additionally, every year
                                 -4-

petitioner claimed dependency exemption deductions for the two

children on his tax return.    Ms. Wyke never executed a Form 8332,

Release of Claim to Exemption for Child of Divorced or Separated

payments, even though the modified decree specifically required

her to do so.

     For tax year 2006, petitioners timely filed Form 1040A, U.S.

Individual Income Tax Return, attached to their return a copy of

the modified decree, and claimed dependency exemption deductions

and child tax credits for both MH and GH.    Ms. Wyke also claimed

dependency exemption deductions and child tax credits for both MH

and GH.   Ms. Wyke was the custodial parent of MH and GH for 2006.

                               OPINION

I. Dependency Exemption Deduction

     Section 151(c) allows taxpayers to deduct an exemption for

each individual who qualifies as a dependent as defined in

section 152.    Section 152 provides several definitions for a

dependent, including section 152(e), which specifies how to

determine the dependent status of children of divorced parents.

The exceptions of section 152(e)(1) apply if a child receives

more than half of her support from her parents, the parents are

divorced, and the parents have custody of the child for more than

half of the tax year.

     If the requirements of section 152(e)(1) are met the

custodial parent may claim the exemption, unless all of the
                                -5-

criteria for one of the section 152(e) exceptions have been met.

The only relevant exception is section 152(e)(2), which provides

that the noncustodial parent may claim the dependent exemption

for a calendar year only 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 regulations in effect in 2006 specify that the declaration

required under section 152(e)(2) must be made either on a

completed Form 8332 or on a statement conforming to the substance

of Form 8332.   See sec. 1.152-4T(a), Q&A-3, Temporary Income Tax

Regs., 49 Fed. Reg. 34459 (Aug. 31, 1984).4   Form 8332 requires a

taxpayer to furnish (1) the names of the children for whom

exemption claims were released, (2) the years for which the

claims were released, (3) the signature of the custodial parent,

(4) the date of the custodial parent’s signature, (5) the name of

the noncustodial parent claiming the exemption, and (6) the

Social Security numbers for the custodial and noncustodial

parents.



     4
      The Court notes that temporary regulations have binding
effect and are entitled to the same weight as final regulations.
See Peterson Marital Trust v. Commissioner, 102 T.C. 790, 797
(1994), affd. 78 F.3d 795 (2d Cir. 1996).
                                -6-

     Ms. Wyke’s failure to sign either a Form 8332 or a

substantially equivalent document is the controlling factor in

this case.   The signature of the custodial parent releasing the

claim to the dependent exemption is a statutory requirement that

cannot be waived.   See sec. 152(e)(2) (providing that “the

custodial parent signs a written declaration”); Miller v.

Commissioner, 114 T.C. 184, 190 (2000) affd. on other grounds sub

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

Although this Court has allowed the use of a divorce decree to

serve as a substantially equivalent document to a Form 8332 in

appropriate cases, a decree that was not signed by the custodial

parent is not sufficient.   Compare Boltinghouse v. Commissioner,

T.C. Memo. 2003-134, with Miller v. Commissioner, supra.

Petitioners have provided no evidence that Ms. Wyke has ever

signed a Form 8332 or equivalent document, nor was any signed

document attached to their 2006 tax return.   Therefore,

petitioners have not met the statutory requirements necessary to

claim the dependency exemption deductions.

     Although this Court is sympathetic to petitioner’s

difficulties in acquiring a signed Form 8332, especially during

those years when the children’s whereabouts were unknown, the

statutory language clearly controls this case.    Absent a signed

release by the custodial parent, petitioner is unable to claim

dependency exemption deductions for his sons.    Neither
                                -7-

petitioner’s faithful payments of child support nor Ms. Wyke’s

failure to comply with her divorce decree and State law is

sufficient to release the deduction to petitioner.      Without a

completed Form 8332 or a substantially equivalent document,

petitioner, as the noncustodial parent, does not qualify for the

deductions under section 151.

II. Child Tax Credit

     Section 24(a) provides that a taxpayer may claim a credit

for each qualifying child.   A taxpayer may satisfy the qualifying

child requirement if a taxpayer establishes entitlement to the

dependency exemption deduction under the exception of section

152(e)(2).   Walker v. Commissioner, T.C. Memo. 2008-194.     Because

petitioners have failed to satisfy the requirements under section

152(e)(2), as discussed above, they are ineligible for the child

tax credit provided by section 24(a) for MH and GH in tax year

2006.

     To reflect the foregoing and the concessions of the parties,


                                           Decision will be entered

                                      under Rule 155.
