                  T.C. Summary Opinion 2006-103



                      UNITED STATES TAX COURT



                 ELLA M. ROYSTER, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 20407-03S.            Filed July 12, 2006.



     Ella M. Royster, pro se.

     Aaron Gregory, for respondent.



     WELLS, 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.   All subsequent section references are to
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the Internal Revenue Code in effect for the years in issue, and

all Rule references are to the Tax Court Rules of Practice and

Procedure.

     Respondent determined deficiencies in petitioner’s Federal

income taxes of $4,898 and $5,306 for 2001 and 2002,

respectively.    The issues we must decide are:

     1.     Whether petitioner is entitled to head of household

filing status for taxable years 2001 and 2002;

     2.     whether petitioner is entitled to claim two dependency

exemption deductions for her minor children for taxable years

2001 and 2002;

     3.     whether petitioner is entitled to claim the earned

income credit as an individual with two qualifying children for

taxable years 2001 and 2002; and

     4.     whether petitioner is entitled to claim the child tax

credit and the additional child tax credit for taxable years 2001

and 2002.

                             Background

     At the time of filing the petition, petitioner resided in

Chesapeake, Virginia.    Petitioner and Kenneth D. Royster, Sr.

(Mr. Royster), were married on February 25, 1989, and had two

children during their marriage.    The couple separated during

March 1997.    On May 29, 1998, the Juvenile and Domestic Relations

District Court for the City of Chesapeake, Virginia, issued an
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order granting primary physical custody of the two children to

Mr. Royster and liberal visitation to petitioner.1    Petitioner

and Mr. Royster were divorced on March 30, 2002.     The divorce

decree ordered petitioner to pay Mr. Royster $278.48 per month

for child support.

     Petitioner timely filed Forms 1040, U.S. Individual Income

Tax Return, for taxable years 2001 and 2002.   On her 2001 and

2002 returns, petitioner filed as a head of household and claimed

two dependency exemptions for her two minor children, the earned

income credit, and the additional child tax credit.     On her 2002

return, petitioner also claimed the child tax credit.     Petitioner

did not attach to either return a Form 8332, Release of Claim to

Exemption for Child of Divorced or Separated   Parents, or other

written declaration by Mr. Royster.

     Respondent determined that petitioner was not eligible for

head of household filing status because her children did not live

with her for over half of each taxable year in issue, and that

she was not eligible for any of the other claimed exemptions and

credits.   Accordingly, respondent determined a $4,8982 deficiency



     1
      According to the May 29, 1998, order, liberal visitation
includes every other weekend and every other holiday.
     2
      The Form 4549, Income Tax Examination Changes, attached to
the notice of deficiency for taxable year 2001 shows that
respondent applied a $4,489 overpayment from a subsequent tax
year against petitioner’s 2001 deficiency.
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in tax for petitioner’s 2001 taxable year and a $5,3063

deficiency in tax for petitioner’s 2002 taxable year and sent

petitioner notices of deficiency on September 26 and August 22,

2003, respectively.   Petitioner timely petitioned this Court,

denying that she owed the deficiencies in taxes and requesting

the refund of overpayments from subsequent tax years which

respondent had used to offset her 2001 and 2002 tax liabilities.

                            Discussion

     As a general rule, the Commissioner’s determinations in the

notice of deficiency are presumed correct and the burden of

proving an error is on the taxpayer.4    Rule 142(a); Welch v.

Helvering, 290 U.S. 111, 115 (1933).

     Custody is determined by the most recent divorce or custody

decree.   Sec. 1.152-4(b), Income Tax Regs.   A noncustodial parent

may be entitled to a dependency exemption deduction under section

151 if the noncustodial parent attaches to his or her tax return


     3
      The amount stated in the notice of deficiency for taxable
year 2002 was based on respondent’s determination that
petitioner’s correct filing status was married filing separately.
Respondent now concedes that petitioner’s correct filing status
is single and that the correct amount of the deficiency for
taxable year 2002 is $5,186.

     The Form 4549, Income Tax Examination Changes, attached to
the notice of deficiency for taxable year 2002 shows that
respondent applied a $4,027 overpayment from a subsequent tax
year against petitioner’s 2002 deficiency.
     4
      Sec. 7491(a)(1) does not apply in the instant case because
petitioner did not comply with the substantiation and document
production requirements. See sec. 7491(a)(2).
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a Form 8332 or similar written declaration, signed by the

custodial parent, stating that the custodial parent will not

claim the child as a dependent for the calendar year.      Sec.

152(e)(2); Miller v. Commissioner, 114 T.C. 184 (2000).      The

divorce decree incorporated the May 29, 1998, custody order that

granted primary physical custody to Mr. Royster.    Petitioner, as

the noncustodial parent, did not attach to her 2001 or 2002

return a Form 8332 or similar written declaration by Mr. Royster

stating that he would not claim the children as dependents.

Accordingly, we hold petitioner is not entitled to dependency

exemption deductions for her children for taxable years 2001 and

2002.

     In general, in order to qualify for head of household filing

status, the earned income credit, the child tax credit, and the

additional child tax credit, the taxpayer must show that she was

entitled to a dependency exemption deduction for her child and/or

the child lived with the taxpayer for over half of the taxable

year.    See secs. (2)(b)(1)(A), 32(a), (c), 24(a), (c).

Petitioner did not provide credible evidence that her children

lived with her for over half of each taxable year in issue5, and,

as noted above, petitioner is not entitled to dependency

exemption deductions for her children for each taxable year in


     5
      At trial, petitioner admitted that she did not have any
evidence proving that her children lived with her for over half
of each year in issue.
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issue.   Accordingly, we hold petitioner is not entitled to file

as a head of household or claim the earned income credit, the

child tax credit, and the additional child tax credit for taxable

years 2001 and 2002.

     To reflect the foregoing,


                                              Decision will be entered

                                         for respondent.
