                    T.C. Summary Opinion 2010-160



                        UNITED STATES TAX COURT



             JACK ELLIOTT ROSENSTEIN, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 336-10S.                   Filed October 27, 2010.



     Jack Elliott Rosenstein, pro se.

     John M. Janus, Anne D. Melzer, and Christopher Tyrpak

(student), for respondent.



     RUWE, 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




     1
      Unless otherwise indicated, all section references are to
the Internal Revenue Code in effect for the year at issue, and
all Rule references are to the Tax Court Rules of Practice and
Procedure.
                                   - 2 -

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 $2,186 deficiency in petitioner’s

2007 Federal income tax and a $19.20 addition to tax under

section 6651(a)(1).       Petitioner did not contest the addition to

tax.       The issues for decision are:    (1) Whether petitioner is

entitled to a dependency exemption deduction; (2) whether

petitioner is entitled to the child tax credit; and (3) whether

petitioner is entitled to head of household filing status.

                                Background

       Some of the facts have been stipulated and are so found.

Petitioner resided in New York when the petition was filed.

       Petitioner claimed his son, B.R.,2 as a dependent on his

2007 Federal income tax return.       Petitioner also claimed a $1,000

child tax credit based on B.R. and also claimed head of household

filing status for 2007.

       Petitioner is B.R.’s father and is divorced from B.R.’s

mother.       During 2007 B.R. lived at petitioner’s house no more

than 104 days.       For the remainder of the year B.R. resided with

his mother.       Petitioner admitted that he was not B.R’s custodial

parent during 2007.




       2
      The Court refers to minor children by their initials.        See
Rule 27(a)(3).
                                 - 3 -

     Pursuant to petitioner’s 2002 judgment of divorce,

petitioner was entitled to claim B.R. as a dependent until his

ex-wife’s income reached $20,000.    When her income reached

$20,000, petitioner and his ex-wife were directed by the judgment

of divorce to claim B.R. as a dependent in alternate years.

Petitioner testified that since his ex-wife never provided him

with a copy of her income tax return, petitioner “assumed” that

she was not making $20,000 per year.

     Petitioner did not attach to his 2007 Federal income tax

return a Form 8332, Release of Claim to Exemption for Child of

Divorced or Separated Parents, or any other signed declaration

from B.R.’s mother stating that she would not claim B.R. as a

dependent for 2007.

                            Discussion

     As a general rule, the Commissioner’s determinations set

forth in a notice of deficiency are presumed correct, and the

taxpayer bears the burden of proving otherwise.    Rule 142(a);

Welch v. Helvering, 290 U.S. 111, 115 (1933).

Dependency Exemption Deduction

     Section 151(c) allows a taxpayer to deduct an annual

exemption amount for each dependent as defined in section 152.      A

dependent is either a qualifying child or a qualifying relative.

Sec. 152(a).   A qualifying child for purposes of the exemption

must meet four requirements under section 152(c).    One of those
                                 - 4 -

requirements is that the individual claimed as a dependent have

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

one-half of such taxable year.    B.R. did not have the same

principal place of abode as petitioner during 2007; therefore,

B.R. is not petitioner’s qualifying child under section 152(c).

     Section 152(e), however, provides a special rule for the

children of divorced parents.    Section 152(e)(2) provides that

the child will be treated as a qualifying child if the custodial

parent signs a written declaration that such custodial parent

will not claim the child as a dependent.    In addition, the

noncustodial parent must attach the written declaration to the

noncustodial parent’s return for the taxable year.    No such

declaration was made by B.R.’s mother, and no Form 8332 was

attached to petitioner’s 2007 Federal income tax return as

required by section 152(e)(2).    In Miller v. Commissioner, 114

T.C. 184, 190 (2000), this Court stated that satisfying the

signature requirement is critical to the successful release of

the dependency exemption within the meaning of section 152(e)(2).

     As to whether B.R. could be a qualifying relative, we find

that B.R. is not a qualifying relative of petitioner under

section 152(d) because that term requires that B.R. not be a

qualifying child of someone else and, as indicated by the facts,

B.R. is a qualifying child of his mother within the meaning of
                                - 5 -

section 152(c).    We therefore hold that petitioner is not

entitled to a dependency exemption deduction for B.R.

Child Tax Credit

     Section 24(a) authorizes a tax credit with respect to each

qualifying child of the taxpayer.    The term “qualifying child”

means a qualifying child of the taxpayer as defined in section

152(c) or (e) who has not attained age 17.    Sec. 24(c).   We have

already held that B.R. is not a qualifying child of petitioner

under either subsection (c) or (e).     Therefore, petitioner is not

entitled to the child tax credit.

Head of Household Filing Status

     In order to qualify as a head of household under section

2(b), an individual must maintain as his home a household which

constitutes for more than one-half of the taxable year the

principal place of abode of a “qualifying child” as defined in

section 152(c).    Petitioner’s claim to head of household filing

status is based on his son, B.R.    Since we have already held that

B.R. is not petitioner’s qualifying child under section 152(c),

petitioner is not entitled to head of household filing status.

     We have considered all of the parties’ contentions, and, to

the extent not addressed herein, we conclude those contentions

are either without merit or unnecessary to the resolution of the

issues in this case.
                            - 6 -

To reflect the foregoing,


                                         Decision will be entered

                                    for respondent.
