                  T.C. Summary Opinion 2005-58



                     UNITED STATES TAX COURT



    RICKY C. HUTCHINSON AND TAMMY L. McNICHOL, Petitioners v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent


     Docket No. 11690-02S.               Filed May 18, 2005.


     Stephen T. Walzak, for petitioners.

     Alexandra E. Nicholaides, for respondent.



     COUVILLION, Special Trial Judge:    This case was heard

pursuant to section 7463 of the Internal Revenue Code in effect

at the time the petition was filed.1    The decision to be entered

is not reviewable by any other court, and this opinion should not

be cited as authority.




1
     Unless otherwise indicated, section references are to the
Internal Revenue Code in effect for the year at issue.
                                - 2 -


     Respondent determined a deficiency of $1,825 in petitioners’

Federal income tax for 1999.   The sole issue for decision is

whether Tammy L. McNichol (petitioner) released to her former

spouse, John F. McNichol (Mr. McNichol), under section 152(e)(2),

for the year 1999, the dependency exemption deductions for

petitioner and Mr. McNichol’s two children.

     Some of the facts were stipulated, and those facts, with the

accompanying exhibits are so found and are made part hereof.     At

the time the petition was filed, petitioners were legal residents

of Gladwin, Michigan.

     Petitioner and Mr. McNichol were formerly married to each

other and were divorced in November 1990.   Two daughters were

born of that marriage in 1987 and 1989.   Petitioner thereafter

married Ricky C. Hutchinson.   They filed a joint Federal income

tax return for 1999.    Mr. McNichol, petitioner’s former spouse,

also remarried.

     On their joint Federal income tax return for 1999,

petitioners claimed the two daughters as dependents.   Likewise,

Mr. McNichol and his spouse claimed the two daughters as

dependents.   In the notice of deficiency, respondent disallowed

the two dependency exemption deductions claimed by petitioners

for her two daughters.2   The basis for the disallowance is


2
     The record is unclear whether respondent also disallowed the
                                                   (continued...)
                               - 3 -


respondent’s determination that petitioner released to her former

spouse the dependency exemption deductions for the two daughters

by virtue of petitioner’s execution of Form 8332, Release of

Claim to Exemption for Child of Divorced or Separated Parents,

wherein petitioner released to her former spouse the dependency

exemptions for the two children for the year 1992 and all future

years.   Petitioner agrees that she released the dependency

exemption deductions of the two children for the 1992 tax year

but denies that she released the exemption deductions for the

years subsequent to 1992.

     Section 151(c) allows a taxpayer to deduct an annual

exemption amount for each dependent, as defined in section 152.

Under section 152(a), the term “dependent” means, in pertinent

part, a son or daughter of the taxpayer over half of whose

support was received from the taxpayer.   Sec. 152(a)(1).

     In the case of a child of divorced parents, section

152(e)(1) provides in pertinent part that, if a child receives

over half of his support from his parents who are divorced under

a decree of divorce, and the child is in the custody of one or

both of his parents for more than one-half of the year, then the

child will be treated as receiving over half of his support from




2
 (...continued)
dependency exemption deductions claimed by Mr. McNichol.
                               - 4 -


the parent having custody for a greater portion of the calendar

year.   Respondent agrees that petitioner met that requirement.

     The “noncustodial parent” is allowed to claim the dependency

exemption deductions if one of three statutory exceptions in

section 152(e) applies.   If an exception applies, the

“noncustodial parent” (in this case, Mr. McNichol) is treated as

providing over half of a child’s support.   This case focuses on

section 152(e)(2), the exception that is at issue here.

     Section 152(e)(2) provides, if “the custodial parent signs a

written declaration”, that such custodial parent will not claim

such child as a dependent, and the noncustodial parent attaches

such written declaration to the noncustodial parent’s return for

the taxable year, the noncustodial parent is entitled to the

dependency exemption deduction for that year.

     The “written declaration” is embodied in Form 8332.   That

form consists of two parts, Part I, which is for the release of

the dependency exemption for the “current year”, and Part II

applies to releases for “future years”.   Both parts (if

applicable) must be signed by the custodial parent releasing the

exemptions, and each part requires the year or years (in the case

of Part II) to which the exemption is released and the names of

the dependents.

     In this case, Mr. McNichol and his spouse attached to their

1999 Federal income tax return a completed Form 8332, purportedly
                                - 5 -


signed by petitioner, which appears to satisfy the above

requirements and includes, on the signature lines of both Parts I

and II, a signature that purports to be that of petitioner Tammy

L. McNichol.   Petitioner, however, contends that she released the

dependency exemptions for only the year 1992 and did not release

or did not intend to release the exemptions for any years

subsequent to 1992.    She denies having consented to Part II,

releasing the exemptions for all “future” years.    Prior to trial,

petitioner and her former spouse each engaged the services of

forensic experts to address whether petitioner Tammy L. McNichol

signed Form 8332 to allow Mr. McNichol to claim the dependency

exemption deductions for all “future” years.    The reports of the

forensics experts were not offered at trial, nor were the experts

called as witnesses.    However, the parties stipulated that both

evaluations provided inconclusive results.3

     The Court considers the testimony of Mr. McNichol as pivotal

in the decision of this case.    Mr. McNichol had engaged the

services of an income tax return preparer to prepare his 1992

Federal income tax return.    The return preparer (who did not



3
     Although not entirely clear, it does not appear that
respondent engaged the services of a forensic expert. Although
counsel for respondent referred to “both parties” as having
employed the forensic experts, the Court assumes that “both
parties” meant petitioner and her former spouse, Mr. McNichol.
Neither petitioner, Mr. McNichol, nor respondent addressed the
forensic evaluations at trial.
                                 - 6 -


testify at trial) advised Mr. McNichol of the necessity of having

a Form 8332 to attach to his 1992 return to allow him the

dependency exemption deductions of the two children for that

year.   The preparer provided Mr. McNichol with a blank Form 8332,

which he was instructed to present to his former wife for her

signature.   Mr. McNichol presented the form to his former wife

and, in a rather tense atmosphere, petitioner signed only Part II

of the form.   Mr. McNichol did not question his former wife as to

the significance of her signature on that part of the form, and

he immediately delivered the signed blank form to his return

preparer.    The return preparer expressed surprise that petitioner

signed Part II but opined to Mr. McNichol that, since Part I was

not signed, he would not be able to claim the dependency

exemption deductions for 1992.    At that point, the return

preparer prepared a new Form 8332, in which the preparer

completed both Parts I and II and directed Mr. McNichol to return

and obtain petitioner’s signature for both Parts I and II.    Mr.

McNichol immediately went back to his former wife with directions

that she sign both Parts I and II as required by the return

preparer.    Again, in a tense atmosphere, petitioner signed both

Parts I and II of Form 8332.

     In his testimony at trial, Mr. McNichol acknowledged that he

was expecting that his former wife would release the dependency

exemptions for only 1 year, 1992.    That was also the
                               - 7 -


understanding of the return preparer.     Mr. McNichol was also

unfamiliar with Form 8332.   Mrs. McNichol testified at trial and

corroborated the testimony of Mr. McNichol.     There is no

indication from the record that Mr. McNichol or anyone else

threatened or applied pressure on petitioner to sign the Form

8332.   While their relations with each other were obviously

strained, the Court is satisfied that petitioner signed the

document without any threat or intimidation by her former spouse.

Petitioner did not sign the form under duress.     In King v.

Commissioner, 121 T.C. 245, 253 (2003), where the former spouse

challenged the validity of the Form 8332, the Court noted:      “it

was Mrs. King’s duty to make the appropriate inquiries before she

signed the Form 8332 permanently releasing her claim to exemption

deductions * * *, and we will not ignore the properly executed

form because she now contends that she did not intend to release

her claim for the years in issue.”     Respondent, therefore, is

sustained.

     Reviewed and adopted as the report of the Small Tax Case

Division.



                                            Decision will be entered

                                       for respondent.
