                  T.C. Summary Opinion 2010-124



                     UNITED STATES TAX COURT



                 TOMMY C. VASQUEZ, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 12517-09S.               Filed August 25, 2010.



     Tommy C. Vasquez, pro se.

     Nicholas D. Doukas and Timothy Froehle (specially

recognized), for respondent.




     ARMEN, Special Trial Judge:   This case was heard pursuant to

the provisions of section 7463 of the Internal Revenue Code in

effect when the petition was filed.1   Pursuant to section


     1
        Unless otherwise indicated, all subsequent section
references are to the Internal Revenue Code in effect for the
year in issue, and all Rule references are to the Tax Court Rules
                                                   (continued...)
                                - 2 -

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 case.

     Respondent determined a deficiency in petitioner’s 2007

Federal income tax of $1,850.

     The issues for decision are whether petitioner is entitled

to a dependency exemption deduction and a child tax credit for

his daughter.

                             Background

     Some of the facts have been stipulated, and they are so

found.   We incorporate by reference the parties’ stipulation of

facts and accompanying exhibits.   Petitioner resided in the State

of California when the petition was filed.

     Petitioner and Stacy Marie Kennedy (Ms. Kennedy) were

married in 1996, and the couple had a daughter, GV, in 2000.2

     In or about 2002 petitioner and Ms. Kennedy separated.     Even

though they have never formally divorced, they have lived apart

from one another with minimal contact ever since.

     When they separated, Ms. Kennedy took GV and moved to

Wildomar, California, in Riverside County; petitioner remained in



     1
      (...continued)
of Practice and Procedure.
     2
        For privacy reasons, the Court refers to minor children
by their initials. See Rule 27(a)(3).
                                 - 3 -

Fresno, where he continues to reside.    Wildomar and Fresno are

approximately 300 miles apart.

     In 2005, the Superior Court in Riverside County awarded

joint legal custody of GV to petitioner and Ms. Kennedy and

physical custody of GV to Ms. Kennedy.    The Superior Court also

ordered petitioner to pay child support, which he has paid

faithfully ever since.   Provision was also made for visitation by

petitioner.

     In 2006, GV began attending elementary school in Riverside

County.

     During 2007, GV resided with petitioner in Fresno for

approximately 103 days and with Ms. Kennedy in Wildomar, where GV

attended school, for the balance of the year.    Together,

petitioner and Ms. Kennedy paid all, or virtually all, of the

support for GV.

     Petitioner timely filed a Federal income tax return for

2007.   On his return, petitioner claimed a dependency exemption

deduction and a child tax credit for GV.    Petitioner did not

attach--and Ms. Kennedy did not sign--a Form 8332, Release of

Claim to Exemption for Child of Divorced or Separated Parents,

releasing the claim to the dependency exemption deduction for GV.

     In a notice of deficiency, respondent determined that

petitioner was not entitled to either a dependency exemption
                                   - 4 -

deduction or a child tax credit for his daughter.          The present

action then followed.

                                Discussion3

A.   Dependency Exemption Deduction

       In general, a taxpayer may claim a dependency exemption

deduction for each individual who is a dependent (as defined in

section 152) of the taxpayer for the taxable year.          Sec. 151(a),

(c).       Section 152(a) defines a dependent to include a qualifying

child.       A qualifying child must, inter alia, share the same

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

of the year in issue.       Sec. 152(c)(1)(B).

       During 2007, GV resided with petitioner in Fresno for

approximately 103 days and with Ms. Kennedy in Wildomar for the

balance of the year.       Thus, for 2007 GV did not share the same

principal place of abode as petitioner for more than one-half of

the year.       GV was not, therefore, the qualifying child of

petitioner for that year within the meaning of section 152(c).

       However, in the case of divorced or separated parents,

special rules determine which parent may claim a dependency

exemption deduction for a dependent.          Thus, section 152(e)

provides in pertinent part as follows:




       3
            We decide this case without regard to the burden of
proof.
                               - 5 -

     SEC. 152(e).   Special Rule for Divorced Parents, Etc.--

          (1) In general.--* * * if–-

               (A) a child receives over one-half of
          the child’s support during the calendar year
          from the child’s parents–-

                    (i) who are divorced or
               legally separated under a decree of
               divorce or separate maintenance,

                    (ii) who are separated under a
               written separation agreement, or

                    (iii) who live apart at all
               times during the last 6 months of
               the calendar year, and–-

               (B) such child is in the custody of 1 or
          both of the child’s parents for more than
          one-half of the calendar year, such child
          shall be treated as being the qualifying
          child or qualifying relative of the
          noncustodial parent for a calendar year if
          the requirements described in paragraph (2)
          or (3) are met.[4]

          (2) Exception where custodial parent releases
     claim to exemption for the year.--For purposes of
     paragraph (1), the requirements described in this
     paragraph are met with respect to any calendar year
     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



     4
        Sec. 152(e)(3), dealing with pre-1985 instruments, is
inapplicable here.
                               - 6 -

          parent’s return for the taxable year
          beginning during such calendar year.

     In other words, the noncustodial parent can gain entitlement

to the deduction if the custodial parent executes a valid written

declaration under section 152(e)(2) releasing the claim to the

deduction.   The declaration required under section 152(e)(2) must

be made either on a completed Form 8332 or on a written statement

conforming to the substance of Form 8332.5   Miller v.

Commissioner, 114 T.C. 184, 188-189 (2000), affd. on another

ground sub nom. Lovejoy v. Commissioner, 293 F.3d 1208 (10th Cir.

2002); Brissett v. Commissioner, T.C. Memo. 2003-310.

     Pursuant to section 152(e)(4), the term “custodial parent”

means the parent having custody for the greater portion of the

calendar year, and the term “noncustodial parent” means the

parent who is not the custodial parent.   Section 1.152-4(b),

Income Tax Regs., provides that custody is “determined by the

terms of the most recent decree of divorce or separate


     5
        Form 8332 requires a taxpayer to furnish: (1) The name
of the child or children; (2) the name and Social Security number
of the noncustodial parent claiming the dependency exemption
deductions; (3) the Social Security number of the custodial
parent; (4) the signature of the custodial parent; (5) the date
of the custodial parent’s signature; and (6) the year or years
for which the claims were released. 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). “The
exemption may be released for a single year, for a number of
specified years (for example, alternate years), or for all future
years, as specified in the declaration.” Sec. 1.152-4T(a), Q&A-
4, Temporary Income Tax Regs., 49 Fed. Reg. 34459 (Aug. 31,
1984).
                               - 7 -

maintenance, or subsequent custody decree, or * * * written

separation agreement.”   If the parents have split custody, the

parent with physical custody the greater part of the year is

deemed to be the custodial parent.     Id.

     In 2005, the Superior Court in Riverside County awarded

joint legal custody of GV to petitioner and Ms. Kennedy and

physical custody of GV to Ms. Kennedy, with petitioner being

granted the right of visitation.   Consistent with the court’s

decree, GV resided with petitioner in Fresno for approximately

103 days during 2007 and with Ms. Kennedy in Wildomar for the

balance of the year.   Thus, Ms. Kennedy was the custodial parent

and petitioner was the noncustodial parent in 2007.   See sec.

152(e)(4); sec. 1.152-4(b), Income Tax Regs.

     Because we find that petitioner was not the custodial parent

during 2007, a Form 8332 or its equivalent would have been

required to qualify him for the exception in section 152(e)(2).

No such documentation was attached to the tax return, and at

trial petitioner candidly admitted that he was unable to secure a

Form 8332, or its equivalent, executed by Ms. Kennedy.

Accordingly, petitioner is not entitled to claim a dependency

exemption deduction for his daughter, see Miller v. Commissioner,

supra at 188-189; Chamberlain v. Commissioner, T.C. Memo. 2007-

178, and   respondent’s determination must be sustained.
                               - 8 -

B.   Child Tax Credit

      Section 24(a) allows a child tax credit with respect to each

qualifying child of the taxpayer.    As relevant herein, the term

“qualifying child” is defined by section 24(c)(1) to mean a

qualifying child of the taxpayer as defined in section 152(c) who

has not attained the age of 17.    A taxpayer may also satisfy the

qualifying child requirement if the taxpayer establishes

entitlement to the dependency exemption deduction under the

exception of section 152(e)(2).     Walker v. Commissioner, T.C.

Memo. 2008-194; see Himes v. Commissioner, T.C. Memo. 2010-97;

Gessic v. Commissioner, T.C. Memo. 2010-88.

      Because GV was not petitioner’s qualifying child under

either section 152(c) or the exception under section 152(e)(2),

the qualifying child requirement of the child tax credit under

section 24 has not been satisfied.     Thus, petitioner is not

entitled to the child tax credit for 2007, and respondent’s

determination must be sustained.

                            Conclusion

      We have considered all of the arguments advanced by

petitioner, and, to the extent that we have not expressly

addressed any, we conclude that none supports an outcome contrary

to that reached herein.
                            - 9 -

To reflect the foregoing,


                                         Decision will be entered

                                    for respondent.
