                  T.C. Summary Opinion 2006-97



                     UNITED STATES TAX COURT



          PAUL W. AND DEBBIE K. COLOZZA, Petitioners v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent


     Docket No. 11748-04S.           Filed June 27, 2006.


     Paul W. Colozza, pro se.

     Charles M. Berlau, for respondent.



     COUVILLION, Special Trial Judge:     This case was heard

pursuant to section 7463 in effect when 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 hereafter
are to the Internal Revenue Code in effect for the year at issue.
All Rule references are to the Tax Court Rules of Practice and
Procedure.
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     Respondent determined a deficiency of $1,047 in petitioners’

Federal income tax for 2001.

     The sole issue for decision is whether petitioners are

entitled to a dependency exemption deduction under section 151

for their 2001 tax year for a child of Paul W. Colozza

(petitioner) from a prior marriage.

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

annexed exhibits, are so found and are incorporated herein by

reference.   At the time their petition was filed, petitioners’

legal residence was Kansas City, Missouri.

     Petitioner was previously married to Janice Lee Henderson

(Mrs. Henderson).   One child was born of that marriage.

Petitioner and Mrs. Henderson were later divorced prior to the

year at issue.   The divorce decree provided that the child’s

primary residence was with Mrs. Henderson.   In 1999, the State

court in which they were divorced issued a judgment modifying the

divorce decree with regard to petitioner’s support obligations

for the child.   That modification, as it pertains to the issue

before this Court, provided:


          That FATHER is awarded the tax exemption each year
     beginning in calendar year 1999 for the child if he makes
     his ordered child support (both current and arrearage)
     payments for that year, and MOTHER shall sign IRS Form 8332
     or any other necessary documents by January 31 of the
     following year to ensure that FATHER receives the exemption.
                                 - 3 -




There is no issue or claim that petitioner did not support the

child for the year 2001 in accordance with the court decree.

Prior to filing his joint Federal income tax return for 2001 with

his current spouse, petitioner contacted his former spouse to

obtain her consent on Form 8332, Release of Claim to Exemption

for Child of Divorced or Separated Parents, in order to enable

him and his current spouse (a petitioner herein) to claim the

dependency exemption for the child.       Petitioner’s former spouse

refused to sign the Form 8332.    Petitioners, accordingly, filed

their joint return for 2001 and claimed the child as a dependent.

Petitioners attached to their return an unsigned Form 8332 and

also attached the pertinent page or pages of the court’s decree

quoted above regarding petitioner’s entitlement to the dependency

exemption deduction for the child.       Respondent disallowed the

claimed dependency exemption on the ground that petitioners “did

not establish” that they were entitled to the deduction.

     Generally, the determinations of the Commissioner in a

notice of deficiency are presumed correct, and the burden of

proof is on the taxpayer to prove that the determinations are in

error.   Rule 142(a); Welch v. Helvering, 290 U.S. 111 (1933).2



     2
      Since the issue in this case is legal in nature, sec. 7491,
which in some circumstances shifts the burden of proof to
respondent, is not applicable here.
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     Section 151(c) allows taxpayers to deduct an annual

exemption amount for each “dependent” as defined in section 152.

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

individuals, such as a son, daughter, stepson, or stepdaughter,

“over half of whose support, for the calendar year in which the

taxable year of the taxpayer begins, was received from the

taxpayer (or is treated under subsection (c) or (e) as received

from the taxpayer)”.

     The support test in section 152(e)(1) applies if:   (1) A

child receives over half of his support during the calendar year

from his parents; (2) the parents are divorced under a decree of

divorce; and (3) such child is in the custody of one or both of

his parents for more than one-half of the calendar year.    If

these requirements are satisfied, as in the present case, the

“child shall be treated, for purposes of subsection (a), as

receiving over half of his support during the calendar year from

the parent having custody for a greater portion of the calendar

year (* * * referred to as the ‘custodial parent’)”, thus

allowing the dependency exemption to be claimed by the “custodial

parent”.   Sec. 152(e)(1).

     To decide who has custody, section 1.152-4(b), Income Tax

Regs., provides that custody “will be determined by the terms of

the most recent decree of divorce” if there is one in effect.

Since petitioner’s divorce decree declares that the primary
                                - 5 -


residence of the child was with the former spouse, she is

considered the child’s “custodial parent” under section 152(e).

     Petitioner, as the “noncustodial parent”, is allowed to

claim a child as a dependent only if one of three statutory

exceptions is met.   Under these exceptions, the noncustodial

parent is treated as providing over half of a child’s support

and, therefore, entitled to the dependency exemption if, as

pertains to this case:   “(A)   The custodial parent signs a

written declaration that such custodial parent will not claim

such child as a dependent”, and “(B) the noncustodial parent

attaches such written declaration to the noncustodial parent’s

return for the taxable year”.    Sec. 152(e)(2).   The two other

situations in which petitioner could have claimed the exemption

are not applicable to this case.

     With respect to the provisions of section 152(e) and the

pertinent portion of section 152(e)(2) described above, in order

for the noncustodial spouse to claim the dependency exemption

deduction, it is specifically required that the custodial parent

sign “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”.     Pursuant to

this statutory provision, temporary regulations were promulgated

that provide:   “The written declaration may be made on a form to

be provided by the Service for this purpose.    Once the Service
                               - 6 -


has released the form, any declaration made other than on the

official form shall conform to the substance of such form.”     Sec.

1.152-4T(a), Q&A-3, Temporary Income Tax Regs., 49 Fed. Reg.

34459 (Aug. 31, 1984).3   Form 8332 requires the (1) name of the

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

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

parent, (4) Social Security number of the custodial parent,

(5) date of signature, and (6) name and Social Security number of

the parent claiming the exemption.

     Petitioner argued at trial that the documentation he

attached to his income tax return conformed to the substance of

Form 8332.   The Court disagrees.    There is no statement from the

former spouse as to the year or years in which the dependency

exemption is released, nor does the information submitted with

petitioner’s income tax return include the Social Security number

of his former spouse, and, most importantly, there is no signed

statement by the former spouse that she would not claim the

dependency exemption deduction.     In fact, the parties at trial



     3
      The Court notes that temporary regulations have binding
effect and are entitled to the same weight as final regulations.
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 LeCroy Research Sys.
Corp. v. Commissioner, 751 F.2d 123, 127 (2d Cir. 1984), revg. on
other grounds T.C. Memo. 1984-145.
                               - 7 -


acknowledged that petitioner’s former spouse had claimed the

child as a dependent on her income tax return for 2001.

     Although petitioner’s divorce decree provides that he is

entitled to the dependency exemption deduction for the child,

State courts, by their decisions, cannot determine issues of

Federal tax law.   Commissioner v. Tower, 327 U.S. 280 (1946);

Kenfield v. United States, 783 F.2d 966 (10th Cir. 1986); Nieto

v. Commissioner, T.C. Memo. 1992-296.     Thus, the Court concludes

that, pursuant to section 152(e), petitioner is not entitled to

claim his child as a dependent for 2001.     His recourse, if any,

lies in the State court for enforcement of the divorce decree.

     Reviewed and adopted as the report of the Small Tax Case

Division.



                                            Decision will be entered

                                       for respondent.
