                      T.C. Summary Opinion 2011-5



                        UNITED STATES TAX COURT



               MICHAEL FRED WESNER, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 15745-09S.             Filed January 24, 2011.



     Michael Fred Wesner, pro se.

     Alicia E. Elliott, for respondent.



     GERBER, Judge:    This case was heard pursuant to the

provisions of section 74631 of the Internal Revenue Code in

effect when the petition was filed.    Pursuant to section 7463(b),

the decision to be entered is not reviewable by any other court,

and this opinion shall not be treated as precedent for any other


     1
      Unless otherwise indicated, all section references are to
the Internal Revenue Code in effect for 2007, the taxable year in
issue.
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case.    Respondent determined a $2,559 income tax deficiency for

petitioner’s 2007 tax year.    The deficiency is attributable to

respondent’s disallowance of a claimed dependency exemption

deduction, head of household filing status, and an earned income

tax credit.    We consider whether petitioner is entitled to a

dependency exemption deduction and/or an earned income tax

credit.2

                            Background

     Petitioner resided in Arizona at the time that his petition

was filed.3   During 2007 petitioner was married to

Polly A. Wesner, and he resided with her during the entire year.

     Petitioner has a minor child from a previous marriage to

Denise S. Tokar (Ms. Tokar).    On July 6, 2006, an establishment

and judgment and order (court order) regarding custody was filed

in the Arizona Superior Court, Pima County (divorce court).

Under that court order petitioner was obligated to pay monthly

child support of $229.    The court order awarded petitioner the

right to claim the minor child as a “Federal tax exemption” for

the 2006 and 2007 tax years:

     If * * * [petitioner] has paid in full all current
     support and court ordered arrearage payments due for
     the calendar year by December 31, * * *, the Federal


     2
      Petitioner conceded at trial that he was not entitled to
head of household filing status for his 2007 tax year.
     3
      The parties’ stipulation of facts and the attached exhibits
are incorporated by this reference.
                               - 3 -

     tax exemption for the minor child(ren) shall be
     allocated as follows: * * * [petitioner] to claim 2006
     & 2007. * * * [Ms. Tokar] to claim 2008. Three year
     pattern to continue.

     [Ms. Tokar] shall execute the necessary Internal
     Revenue Service forms to transfer the exemption(s)
     consistent with the order. Note: The exemptions are
     not allocated unless the current support obligation is
     greater than $1,200 per year.

Petitioner was also obligated to pay 60 percent of the minor

child’s unreimbursed medical and dental expenses.    In addition to

future child support, petitioner was also ordered to pay past

care and support of $9,160 for April 1, 2003, through June 30,

2006, at the rate of $76 per month.

     During 2007 petitioner paid a total of $3,687.75 to the

divorce court to satisfy his child support obligations.

Petitioner’s total monthly obligation, including a $2.25 handling

fee, was $307.25 ($229 + $76 + $2.25 = $307.25).    Accordingly,

petitioner had met his total support obligation for 2007 ($307.25

x 12 = $3,687), allowing him to claim the Federal dependency

exemption deduction under the court order.

     Petitioner approached Ms. Tokar, the custodial parent,

immediately after the entry of the court order and arranged an

appointment with her to execute the Internal Revenue Service

forms (tax forms) as ordered by the divorce court.    Ms. Tokar did

not appear at the appointed time and failed to execute the tax

forms.   After petitioner’s attempt to obtain Ms. Tokar’s

signature failed, he sought enforcement of the court order by
                                - 4 -

service of legal process but he did not know her mailing address.

He requested Ms. Tokar’s address from the agency to which he made

the support payments, and it refused to provide her address.

Accordingly, at the time his 2007 income tax return was due,

petitioner did not have the required consent form executed by Ms.

Tokar; and his income tax return was filed without the form or

any other documentation supporting his claim for the dependency

exemption deduction.

     After more than 6 months of trying to obtain Ms. Tokar’s

address, petitioner hired a process server during August 2009 to

find and serve her.    By the time the matter came before the

divorce court it was too late for Ms. Tokar to sign the tax

forms.    The divorce court, finding that petitioner had made

support payments for 2007 and had qualified under the court order

for the dependency exemption deduction, credited $2,559 against

petitioner’s future support payments beginning September 1, 2009.

The income tax deficiency respondent determined for 2007 was

$2,559.

                             Discussion

     Petitioner claimed a dependency exemption deduction and

earned income tax credit for his 2007 tax year.    Section 151(c)

allows an exemption for a “dependent” as defined in section 152.

Generally, to be a “qualifying child” for purposes of the

dependency exemption deduction, the child must not provide over
                               - 5 -

one-half of the child’s own support and must have the same

principal place of abode as the taxpayer for more than one-half

of the taxable year.4   See sec. 152(c)(1)(A), (B), (D), (2)(A).

     Where parents of a child live apart for the last 6 months of

a calendar year and the child receives more than one-half of the

child’s support from both parents and is in the custody of one

parent for more than one-half of the year, the child is treated

as the “qualifying child” of the custodial parent.    See sec.

152(e)(1), (4)(A).

     Petitioner is not the custodial parent, and we must look to

section 152(e), which provides the circumstances under which a

noncustodial parent may claim a dependency exemption deduction.

Section 152(e) sets forth three possible exceptions to the

bright-line rule that the custodial parent is entitled to the

dependency exemption deduction.   The one that could be applicable

is set forth in section 152(e)(2):     “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.”

     No such document was executed and/or attached to

petitioner’s 2007 income tax return and, accordingly, petitioner



     4
      The child must also meet certain age requirements.    Sec.
152(c)(1)(C), (3).
                               - 6 -

does not meet the requirements of the statutory exception and is

not entitled to claim the minor child as a dependent.      This is so

even though a State court with jurisdiction over the parties to a

divorce proceeding ordered that petitioner was entitled to the

dependency exemption deduction for 2007 and even though the

custodial parent had been ordered but failed to execute the

consent form required by the Federal statute.    The consent form

requirement is in absolute terms and is unambiguous.

     The congressional intent to relieve the Commissioner of the

administrative burden of sorting out multiple claims for the same

dependent(s) has been expressed as a bright-line rule, and

petitioner’s circumstances, although compelling, are without

remedy in the context of the Federal tax law.    See Miller v.

Commissioner, 114 T.C. 184 (2000).     Under section 152, even if

petitioner had attached the divorce court’s order to his 2007

income tax return, that would not have sufficed to entitle him to

the deduction because the court order, inter alia, provided only

a contingent release of the dependency exemption deduction.      See

Miller v. Commissioner, supra at 192-193; Thomas v. Commissioner,

T.C. Memo. 2010-11.   Finally, the fact that during 2009

petitioner received credit from the divorce court for the $2,559

income tax deficiency for 2007 is of no consequence to our

consideration of whether petitioner is entitled to claim the

minor child as a dependent for 2007.
                               - 7 -

     Section 32 permits an eligible individual an earned income

tax credit against that individual’s tax liability.      An

individual without a qualifying child may be eligible for an

earned income tax credit subject to specified income limitations.

See Rev. Proc. 2006-53, sec. 3.07(1), 2006-2 C.B. 996, 1000.

However, section 32(d) provides that a married individual is

entitled to the credit only if a joint return is filed.

Petitioner’s 2007 income tax return was filed under the status

“head of household”.   He now concedes that his return filing

status is married filing separately.     Under those circumstances,

petitioner is not entitled to claim an earned income tax credit.

     To reflect the foregoing and petitioner’s concession,


                                            Decision will be entered

                                       for respondent.
