                   T.C. Memo. 2011-245



                 UNITED STATES TAX COURT



           ANGEL ALARCON, JR., Petitioner v.
     COMMISSIONER OF INTERNAL REVENUE, Respondent



Docket No. 8955-10.                Filed October 17, 2011.



     On his 2007 tax return, P claimed dependency exemption
deductions and child tax credits for his two minor sons and
head of household filing status. R disallowed P’s claims.

     Held:   R’s determinations are sustained.



Angel Alarcon, Jr., pro se.

Brock E. Whalen, for respondent.
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             MEMORANDUM FINDINGS OF FACT AND OPINION


     WHERRY, Judge:   This case is before the Court on a petition

for redetermination of an income tax deficiency of $3,631 that

respondent determined for petitioner’s 2007 tax year.   The issues

for decision are (1) whether petitioner is entitled to dependency

exemption deductions for G.A. and S.A., his minor sons;1 (2)

whether petitioner is entitled to child tax credits for G.A. and

S.A.; and (3) whether petitioner is entitled to head of household

filing status.

                         FINDINGS OF FACT

     Some of the facts have been stipulated, and the

stipulations, with the accompanying exhibits, are incorporated




     1
      It is the policy of this Court not to identify minors. We
refer to petitioner’s two minor children by their initials. See
Rule 27(a)(3). All section references are to the Internal
Revenue Code of 1986, as amended and in effect for the year at
issue. All Rule references are to the Tax Court Rules of
Practice and Procedure.
                                - 3 -

herein by this reference.2   Petitioner resided in Texas at the

time his petition was filed.

     Petitioner is the father of two minor sons, G.A. and S.A.

Petitioner and the children’s mother, Susana Alarcon (Ms.

Alarcon), were separated and lived apart the entire 2007 tax

year, Ms. Alarcon residing in the former marital home (marital

home) and petitioner with his parents.

     The marital home is where petitioner and Ms. Alarcon lived

with G.A. and S.A. before their marital difficulties.   Ms.

Alarcon had been given temporary possession of the marital home

pursuant to a temporary order issued December 6, 2006, by the

65th District Court in Texas.   The temporary order also appointed

petitioner and Ms. Alarcon temporary joint managing conservators

over S.A. and G.A.   The parties have orally stipulated that G.A.

and S.A. resided with Ms. Alarcon for a greater portion of the

2007 tax year than they did with petitioner.




     2
      Respondent objected to petitioner’s Exhibit 6-P on the
grounds of hearsay. Exhibit 6-P is a letter allegedly from
petitioner’s divorce attorney to petitioner in which the attorney
states that the delay in resolution of the divorce was due to
petitioner’s wife’s attorneys. We agree with respondent that
Exhibit 6-P is hearsay. Fed. R. Evid. 801(c) defines “Hearsay”
as “a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove
the truth of the matter asserted.” Hearsay is generally excluded
from evidence unless an exception applies. See Fed. R. Evid.
802. Regardless, even if this exhibit was admitted into
evidence, it would have no effect on the outcome of this case.
                                - 4 -

     Petitioner and Ms. Alarcon both followed the terms of the

December 6, 2006, temporary order until their divorce was

finalized on March 9, 2010.   In the March 9, 2010, divorce

decree, petitioner was awarded the marital home.

     Petitioner timely filed Form 1040, U.S. Individual Income

Tax Return, for the 2007 tax year as a head of household.     He

also claimed dependency exemption deductions and child tax

credits for G.A. and S.A.   Ms. Alarcon also claimed G.A. and S.A.

as dependents on her 2007 Federal income tax return.   Petitioner

neither attached Form 8332, Release of Claim to Exemption for

Child of Divorced or Separated Parents, nor had an agreement with

Ms. Alarcon that he would claim the children as dependents on his

tax return.

     Thereafter, respondent disallowed petitioner’s claimed

dependency exemption deductions and child tax credits, changed

his filing status to single, and on February 16, 2010, issued him

a notice of deficiency, determining a deficiency in income tax of

$3,631 for his 2007 tax year.   On April 15, 2010, petitioner

timely petitioned this Court.   Pursuant to this Court’s April 19,

2010, order, petitioner filed an amended petition on May 20,

2010.   In his amended petition, petitioner argued he was the sole

provider for his sons, maintained the home where they lived

“completely 100%”, and was entitled to head of household filing

status.   Trial was held on December 6, 2010, in El Paso, Texas.
                                   - 5 -

                                  OPINION

       As a general rule, the Commissioner’s determination of a

taxpayer’s liability in the notice of deficiency is presumed

correct, and the taxpayer bears the burden of proving that the

determination is improper.      See Rule 142(a); Welch v. Helvering,

290 U.S. 111, 115 (1933).

I.   Dependency Exemption Deductions

       Section 151(a) and (c) allows a taxpayer an annual

exemption deduction for each “dependent” as defined in section

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

child”.       A qualifying child must share the same principal place

of abode as the taxpayer for more than one-half of the year in

issue (residence test).3      Sec. 152(c)(1)(B).    The parties

stipulated that G.A. and S.A. resided with their mother for more

than one-half of the taxable year.         Accordingly, neither G.A. nor

S.A. is petitioner’s qualifying child under section 152(c).

       In the case of divorced or qualified separated parents,

special rules determine which parent may claim a dependency

exemption deduction for a child.      Section 152(e) allows the

noncustodial parent a dependency exemption deduction if the

custodial parent signs a written declaration releasing her claim

to the exemption and the noncustodial parent attaches the


       3
      In addition to the residence test, three other tests--
relationship, age, and support--must be satisfied. Sec.
152(c)(1)(A)-(D). Respondent concedes they were.
                               - 6 -

declaration to his Federal income tax return.4   Neither of these

requirements was met.   Accordingly, neither G.A. nor S.A. is

petitioner’s qualifying child under section 152(e).

     Petitioner’s argument appears to be that he provided all the

financial support for his sons and they were his qualifying

children because he was only temporarily absent from the marital

home “due to the ongoing delays of the divorce”.   At trial he

explained that he relied on language from Internal Revenue

Service (IRS) Publication 501, Exemptions Standard Deduction, and

Filing Information, and 504, Divorced or Separated Individuals.

Both state:

     Temporary absences. You and your qualifying person are
     considered to live together even if one or both of you
     are temporarily absent from your home due to special
     circumstances such as illness, education, business,
     vacation, or military service. It must be reasonable
     to assume that the absent person will return to the
     home after the temporary absence. You must continue to
     keep up the home during the absence.




     4
      The custodial parent is the parent with whom the child
lived for the greater number of nights during the year. The
other parent is the noncustodial parent. Here, Ms. Alarcon is
the custodial parent and petitioner the noncustodial parent. See
IRS Publication 501, Exemptions, Standard Deduction, and Filing
Information.
     The IRS issued Form 8332 to standardize the written
declaration required by sec. 152(e). Miller v. Commissioner, 114
T.C. 184, 189 (2000); Briscoe v. Commissioner, T.C. Memo. 2011-
165. “Although taxpayers are not required to use Form 8332, any
other written declaration executed by the custodial parent must
conform to the substance of Form 8332.” Briscoe v. Commissioner,
supra.
                               - 7 -

     Petitioner, seeking justice from his perspective, construes

the publications and the statutes they interpret as permitting

him to claim his sons since he paid all costs for 2007 on the

marital home, which he also considered to be his home.    Congress

and the Secretary, however, have laid down a bright-line test for

simplicity and administrative convenience.    See H. Rept. 98-432

(Part 1), at 1498 (1984).   Because pursuant to the temporary

order petitioner could not live at the marital home but his wife

could and did in 2007, it was her and the sons’ residence, not

his during that year.   His prolonged absence, though not his

fault and even if caused by his wife and her attorneys, does not

make his more than 3 years’ absence temporary, nor does it make

the marital home his residence for 2007.5    Consequently, neither

G.A. nor S.A. was petitioner’s qualifying child in 2007.    Because

neither is petitioner’s qualifying child, petitioner is not

entitled to a dependency exemption deduction for G.A. or S.A.




     5
      We acknowledge that in Rowe v. Commissioner, 128 T.C. 13,
18-19 (2007), we held “an individual confined in jail after an
arrest but before conviction” could be considered temporarily
absent for purposes of the earned income tax credit where it was
reasonable to assume that she would return to her household and
children after the temporary confinement. Even if petitioner’s
absence were considered temporary, sec. 152(c)(4)(B) provides
that if both parents claim a child, then the child is the
qualifying child of the parent with whom the child resided for
the longer period during the taxable year.
                                - 8 -

II. The Child Tax Credit

     Section 24(a) allows a $1,000 tax credit to a taxpayer for

each “qualifying child”.   Sec. 24(a).   A qualifying child for

purposes of section 24 is a “qualifying child” as defined in

section 152(c) who has not attained the age of 17.    Because we

have determined that neither G.A. nor S.A. is his qualifying

child, petitioner is not entitled to a child tax credit for G.A.

or S.A.    See Gessic v. Commissioner, T.C. Memo. 2010-88.

III. Head of Household Filing Status

     Section 1(b) provides a special tax rate for an individual

who qualifies as a head of household.    As pertinent here, section

2(b)(1) provides that an unmarried individual “shall be

considered a head of household” if that individual “maintains as

his home a household which constitutes for more than one-half of

such taxable year the principal place of abode” of “(i) a

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

* * *)”.   We have determined that for the taxable year 2007

neither G.A. or S.A. is petitioner’s qualifying child or

dependent.   Accordingly, petitioner has failed to prove his

entitlement to head of household filing status.
                                 - 9 -

     The Court has considered all of petitioner’s contentions,

arguments, requests, and statements.       To the extent not discussed

herein, we conclude that they are meritless, moot, or irrelevant.

     To reflect the foregoing,


                                         Decision will be entered

                                 for respondent.
