                          T.C. Memo. 2010-88



                      UNITED STATES TAX COURT



                STEPHEN S. GESSIC, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 156-08.                 Filed April 22, 2010.



     Stephen S. Gessic, pro se.

     John M. Tkacik, Jr., for respondent.



             MEMORANDUM FINDINGS OF FACT AND OPINION


     HAINES, Judge:   Respondent determined a deficiency in

petitioner’s Federal income tax for 2005 of $3,600.    The issues

for decision are:   (1) Whether petitioner is entitled to

dependency exemptions for two dependents totaling $6,400 for the

taxable year 2005, and (2) whether petitioner is entitled to

child tax credits of $2,000 for the taxable year 2005.
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                         FINDINGS OF FACT

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

The stipulation of facts, together with the attached exhibits, is

incorporated herein by this reference.    At the time he filed his

petition, petitioner resided in Ohio.

     Petitioner was married to Dana M. Gessic (Ms. Gessic) on

July 7, 1990.   During the marriage they had two children, one

born in 1991 and the other in 1993.    Petitioner and Ms. Gessic

were granted a divorce by the Court of Common Pleas of Cuyahoga

County, Ohio, through a judgment entry filed on August 7, 1997.

Attached to the judgment entry was a separation agreement and a

shared parenting plan signed by petitioner and Ms. Gessic.

     In compliance with the shared parenting plan, Ms. Gessic was

the custodial parent.   Petitioner was granted visitation rights

on the weekends, for 1 or 2 weeks in the summer, and a week near

Christmas.   The separation agreement required petitioner to make

monthly child support payments to Ms. Gessic.    In the separation

agreement petitioner and Ms. Gessic further agreed that

petitioner would be entitled to the dependency exemptions for the

minor children on condition that:     (1) His child support payments

were current, and (2) Ms. Gessic had not returned to work full

time and earned over $20,000 per year.    If petitioner fell behind

on child support payments or Ms. Gessic secured full-time

employment, the agreement stipulated that petitioner would be
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entitled only to the exemption for the younger child and Ms.

Gessic for the older child.    Petitioner credibly testified that

in the 12 years since their divorce, Ms. Gessic has not held

full-time employment and earned over $20,000 per year.     He

provided documentation that he was current on all child support

payments for the year at issue.    Petitioner further testified

that he did not have custody of the minor children during 2005.

     Petitioner filed his tax return for 2005 claiming dependency

exemptions for both minor children.      However, Ms. Gessic refused

to sign Form 8332, Release of Claim to Exemption for Child of

Divorced or Separated Parents.    Thus, petitioner attached to his

return a copy of a single page from the separation agreement

containing petitioner’s and Ms. Gessic’s initials and the

aforementioned conditions under which petitioner could claim

exemptions for the children.   On October 1, 2007, respondent

issued a notice of deficiency to petitioner determining a

deficiency in Federal income tax for the tax year 2005 of $3,600.

The deficiency was wholly attributable to respondent’s

disallowance of the dependency exemptions and child tax credits

claimed by petitioner.

                               OPINION

A.   Burden of Proof

     Generally, the Commissioner’s determinations are presumed

correct, and the taxpayer bears the burden of proving that those
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determinations are erroneous.    Rule 142(a);1 Welch v. Helvering,

290 U.S. 111, 115 (1933).    Deductions and credits are a matter of

legislative grace, and the taxpayer bears the burden of proving

that he or she is entitled to any deduction or credit claimed.

Rule 142(a); Deputy v. du Pont, 308 U.S. 488, 493 (1940); New

Colonial Ice Co. v. Helvering, 292 U.S. 435, 440 (1934).     Under

section 7491(a)(1), the burden of proof may shift from the

taxpayer to the Commissioner if the taxpayer produces credible

evidence with respect to any factual issue relevant to

ascertaining the taxpayer’s liability.    Petitioner does not argue

or provide evidence that the conditions of section 7491(a) are

fully satisfied; therefore, the burden of proof remains on

petitioner.

B.   Dependency Exemptions

     A taxpayer may claim a dependency exemption “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).   The shared parenting plan granted Ms.



     1
      Unless otherwise indicated, all 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 of Practice and
Procedure.
                                  -5-

Gessic custody of the children and gave petitioner visitation

rights.    Petitioner testified that he did not have custody of the

children during 2005 but exercised his visitation rights.

     In the case of divorced or separated parents, special rules

determine which parent may claim a dependency exemption for a

child.    See sec. 152(e).   As relevant to the present case,

section 152(e)(2) allows the noncustodial parent to claim a

dependency exemption for a child if the custodial parent signs a

written declaration releasing her claim to the exemption and the

noncustodial parent attaches the declaration to his Federal

income tax return.

     The declaration required by section 152(e)(2) must be made

on either Form 8332 or on a statement conforming to the substance

of that form.    Miller v. Commissioner, 114 T.C. 184, 189 (2000);

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

Reg. 34459 (Aug. 31, 1984).     Form 8332 requires a taxpayer to

furnish:    (1) The name of each child, (2) the name and Social

Security number of the noncustodial parent claiming the

dependency exemption, (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, supra at 190. “The exemption may be released for a

single year, for a number of specified years (for example,
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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).

     Petitioner failed to attach Form 8332 to his 2005 return.

Instead, he attached a page from the separation agreement,

initialed by both himself and Ms. Gessic, which stated “[u]ntil

the wife returns to work full time which shall be defined as wife

earning $20,000 gross per year, the parties agree that the

Husband shall receive the tax exemption for the minor children,

so long as his child support payments are current.”   We must

decide whether attaching the page from the separation agreement

to petitioner’s tax return satisfies the requirements of section

152(e)(2) and section 1.152-4T(a), Q&A-3, Temporary Income Tax

Regs., supra.

     In Boltinghouse v. Commissioner, T.C. Memo. 2003-134, the

taxpayers attached to their return a copy of a separation

agreement, which was signed by both the custodial and

noncustodial parents.   The separation agreement unconditionally

granted the noncustodial parent the dependency exemptions.   The

Court held that the separation agreement met the requirements of

a written declaration under section 152(e)(2) because it

conformed in substance to Form 8332.

     Petitioner contends that the page from the separation

agreement, which is initialed by petitioner and Ms. Gessic, is
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similar to the separation agreement in Boltinghouse and would

substitute for Form 8332.   However, simply because the custodial

parent initialed the page of the separation agreement does not

end the analysis regarding whether the document conforms in

substance to Form 8332.   Even if we accept the initials from

petitioner and Ms. Gessic as signatures, the attached page from

the separation agreement failed to include the date of such

signatures, the names of the minor children, or the names or

Social Security numbers of the custodial and noncustodial

parents.

     Furthermore, unlike the separation agreement in Boltinghouse

v. Commissioner, supra, the attached page from the separation

agreement at issue is conditional; namely, that as long as his

child support payments were current, petitioner would receive the

tax exemptions for the minor children until such time as Ms.

Gessic returned to work full time and earned over $20,000 per

year.   These conditions suggest that petitioner’s compliance with

his support obligations or Ms. Gessic’s employment status may

change from year to year, such that petitioner’s entitlement to

the dependency exemptions for his children is potentially subject

to change each year.   Consequently, the conditional language

creates an ambiguity as to what tax years are applicable by

making petitioner’s entitlement to the dependency exemptions

contingent upon the fulfillment of the conditions.   Although
                                  -8-

petitioner testified that he met the condition in 2005, the

Internal Revenue Service cannot be expected to police divorce

decrees and separation agreements or determine taxpayer

compliance therewith.

     Therefore, we find that the attached page of the separation

agreement does not constitute a written declaration under section

152(e)(2) and does not conform to Form 8332.    See also Brissett

v. Commissioner, T.C. Memo. 2003-310.    Accordingly, petitioner is

not entitled to dependency exemptions for the two minor children

for 2005.

C.   Child Tax Credits

     Section 24(a) provides that a taxpayer may claim a credit

for “each qualifying child”.   The term “qualifying child” means a

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

has not attained the age of 17.    Sec. 24(c)(1).   A taxpayer may

also satisfy the qualifying child requirement if the taxpayer

establishes entitlement to the dependency exemption under the

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

Memo. 2008-194.   However, the minor children are not petitioner’s

qualifying children under 152(c) because they did not have the

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

half of the taxable year.   Moreover, petitioner was unable to

establish his eligibility to claim a dependency exemption under
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section 152(e)(2).   Thus, petitioner is not entitled to a tax

credit with respect to either of the minor children for 2005.

     We have considered all of the arguments made by petitioner

and, to the extent that we have not specifically addressed them,

we conclude they are without merit.

     To reflect the foregoing,


                                            Decision will be entered

                                       for respondent.
