                       T.C. Memo. 2002-179



                     UNITED STATES TAX COURT



                NIMIA MARIA RAMOS, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 6562-01.               Filed July 30, 2002.


     Nimia Maria Ramos, pro se.

     Charlotte A. Mitchell and Paul R. Zamolo, for respondent.



             MEMORANDUM FINDINGS OF FACT AND OPINION


     LARO, Judge:   Petitioner petitioned the Court to

redetermine respondent’s determination of a deficiency in her

1998 Federal income tax return. Following a concession by
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respondent,1 we are left to decide the following issues as to 1998:

     1.   Whether petitioner is entitled to a deduction for a

dependency exemption for her son.    We hold she is not.

     2. Whether petitioner is entitled to claim a child tax

credit.   We hold she is not.

     3. Whether petitioner may use the head of household filing

status.   We hold she may not.

                         FINDINGS OF FACT

     The parties have stipulated some of the facts.   Their

stipulation of facts and the exhibits submitted therewith are

incorporated herein by this reference.    We find those facts

accordingly.   Petitioner resided in New York when her petition

was filed.

     Petitioner filed a 1998 Federal income tax return (return),

using the filing status of “Head of Household”.    On that return,

she claimed a dependency exemption deduction for her son,

Alejandro Betancourt (Alejandro).    Petitioner also claimed as to

Alejandro a $400 child tax credit.

     Before coming to the United States, petitioner had lived in

Puerto Rico.   Petitioner’s ex-husband, Jesus Betancourt Flores,

lived in Puerto Rico in 1998 and still lives there.    In 1998, the

principal place of residence for Alejandro was Puerto Rico.


     1
       Respondent concedes that petitioner is not liable for an
additional tax for excess contributions to her Individual
Retirement Account.
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     Petitioner is a noncustodial parent of Alejandro.    Alejandro

resided with petitioner for approximately 3 months during 1998.

Petitioner claims that she provided during 1998 at least half of

the support for her son.    Petitioner has never filed with

respondent as to Alejandro a Form 8332, Release of Claim to

Exemption for Child of Divorced or Separated Parents.

     On February 20, 2001, respondent mailed a notice of

deficiency to petitioner.    The notice of deficiency determined

that petitioner may not claim Alejandro as a dependent, may not

claim a child tax credit, and may not use the filing status of

head of household.

                               OPINION

1.   Dependency Exemption

     Section 151(c) allows a taxpayer to claim as a deduction an

exemption amount for each of his or her dependents.2    Sections

151 and 152 lay out the following five tests that a taxpayer must

meet in order to claim another person as a dependent: (1) Support

test, (2) relationship or household test, (3) citizenship or

residency test, (4) gross income test, and (5) joint return test.

If the taxpayer fails any of these tests, he or she may not claim

the person as a dependent.




     2
       Section references are to the applicable versions of the
Internal Revenue Code. Rule references are to the Tax Court
Rules of Practice and Procedure.
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     As to the support test, the taxpayer generally must provide

more than half of a claimed dependent’s support for the calendar

year in which the taxable year of the taxpayer begins.   Sec.

152(a).   In the case of a child of divorced parents, the

custodial parent generally is entitled to the deduction.    Sec.

152(e)(1).   A noncustodial parent, however, is entitled to the

deduction, pursuant to section 152(e)(2) 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.

Respondent has prescribed Form 8332 for this purpose.

     Here, petitioner is the noncustodial parent of Alejandro.

Respondent has requested petitioner to provide a completed Form

8332 as to Alejandro to comply with the written declaration

requirement of section 152(e)(2)(A).   Because petitioner has

never done so, she is not entitled to a dependency exemption

deduction for Alejandro.3



     3
       Additionally, petitioner has failed to meet the support
test. She has not presented any evidence regarding the total
cost of the support for Alejandro or the portion of the total
support she provided.
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2.   Child Tax Credit

     Respondent determined that petitioner was not entitled to

the claimed child tax credit.   Section 24(a) provides for a

credit against tax for each qualifying child of the taxpayer.

Section 24(c)(1) defines a qualifying child as any individual if:

          (A) the taxpayer is allowed a deduction under
     section 151 with respect to such individual for the
     taxable year,

          (B) such individual has not attained the age of
     17 as of the close of the calendar year in which the
     taxable year of the taxpayer begins, and

          (C) such individual bears a relationship to the
     taxpayer described in section 32(c)(3)(B).

Because petitioner is not allowed a deduction under section 151

with respect to Alejandro, she does not have an eligible or

qualifying child.   It therefore follows that she is not entitled

to a child tax credit under section 24(a), and we so hold.

3.   Head of Household

     Respondent determined that petitioner was not entitled to

file her return using the status of head of household.   Section

(2)(b) allows a taxpayer to file as head of household if the

taxpayer: is not married at the close of the taxable year, is not

a surviving spouse, and maintains as the taxpayer’s “home a

household which constitutes for more than one-half of such

taxable year the principal place of abode” for certain enumerated
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individuals, including a son.   The parties have stipulated that

Alejandro lived with petitioner for only 3 months during 1998.

Thus, petitioner did not provide a household for Alejandro for

more “than one-half of the taxable year”.      Petitioner is unable

to file as head of household and must use the filing status of

single.

     All arguments made by petitioner but not discussed herein

have been considered and have been found to be without merit.

Accordingly,

                                             Decision will be entered

                                        under Rule 155.
