                  T.C. Summary Opinion 2003-66



                     UNITED STATES TAX COURT



                   HOWARD JONES, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 708-02S.                 Filed May 29, 2003.


     Howard Jones, pro se.

     Travis Vance III, for respondent.



     POWELL, Special Trial Judge:   This case was heard pursuant

to the provisions of section 74631 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.

     Respondent determined a deficiency of $2,689 in petitioner’s


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

2000 Federal income tax.   The issues are whether, with respect to

petitioner’s daughter and son, petitioner is entitled to claim

(1) dependency exemption deductions, and (2) an earned income

credit (EIC).   Petitioner resided in Thomson, Georgia, at the

time the petition was filed.

     The facts may be summarized as follows.    Petitioner is

divorced.   Petitioner’s former wife was awarded custody of their

two minor children, Ashley Jones (born 1987) and Justin Jones

(born 1992) (collectively, the children).   The record does not

contain either the divorce decree or custody decree.    During

2000, petitioner resided in Marathon Shores, Florida, and the

children resided with petitioner’s former wife in Thomson,

Georgia.

     In preparing his 2000 Federal income tax return, petitioner

claimed two dependency exemption deductions and an EIC with

respect to the children.   Respondent disallowed the dependency

exemption deductions because petitioner did not attach to his

return a written declaration executed by his former wife waiving

her right to the deductions and the EIC because the children did

not reside with petitioner for more than 6 months in 2000.

Dependency Exemptions

     Sections 151 and 152 provide that a taxpayer is entitled to

deduct an exemption for a minor child if the taxpayer provides

over half of the support for the minor child.    In the case of a
                              - 3 -

minor child whose parents are divorced or separated and together

provide over half of the support for the minor child, section

152(e)(1) provides that the parent having custody for a greater

portion of the calendar year (“custodial parent”) generally shall

be treated as providing over half of the support for the minor

child.

     A noncustodial parent, however, may be treated as providing

over half of the support for the minor child if the requirements

of section 152(e)(2) are satisfied.   Section 152(e)(2) provides

that a noncustodial parent is treated as providing over half of

the support if

          (A) the custodial parent signs a written declaration
     * * * 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 Internal Revenue Service prescribed Form 8332, Release

of Claim to Exemption for Child of Divorced or Separated Parents,

as the appropriate form in which the noncustodial parent may

satisfy the written declaration requirement of section 152(e)(2).

See Miller v. Commissioner, 114 T.C. 184, 190 (2000), affd. on

another ground sub nom. Lovejoy v. Commissioner, 293 F.3d 1208

(10th Cir. 2002); sec. 1.152-4T(a), Q&A-3, Temporary Income Tax
                                 - 4 -

Regs., 49 Fed. Reg. 34459 (Aug 31, 1984).2    Petitioner, as a

noncustodial parent, failed to provide a Form 8332 or any other

written declaration to establish that his former wife waived her

right to the dependency exemption deductions with respect to the

children.     We hold that petitioner is not entitled to the

dependency exemption deductions.     See McCarthy v. Commissioner,

T.C. Memo. 1995-557; Ferguson v. Commissioner, T.C. Memo. 1994-

114.3

Earned Income Credit

        Section 32(a) generally provides eligible individuals with

an EIC against their income tax liability.     An “eligible

individual” is defined as an individual who has a “qualifying

child” for the taxable year.     Sec. 32(c)(1)(A)(i).   As relevant

herein, a “qualifying child” must satisfy a residency test.       Sec.

32(c)(3)(A)(ii) provides that the “qualifying child” must have

“the same principal place of abode as the taxpayer for more than

one-half” of the taxable year.

        At trial, petitioner admitted that the children did not

reside with him during the 2000 taxable year.     We conclude that


2
   Temporary regulations 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); Truck &
Equip. Corp. v. Commissioner, 98 T.C. 141, 149 (1992); see also
LeCroy Research Sys. Corp. v. Commissioner, 751 F.2d 123, 127 (2d
Cir. 1984), revg. on other grounds T.C. Memo. 1984-145.
3
   Sec. 7491(a), concerning burden of proof, has no bearing on
the underlying substantive issues.
                              - 5 -

petitioner is not entitled to an EIC.    See Briggsdaniels v.

Commissioner, T.C. Memo. 2001-321; Brignac v. Commissioner, T.C.

Memo. 1999-387.

     Reviewed and adopted as the report of the Small Tax Case

Division.

                                           Decision will be entered

                                      for respondent.
