                          T.C. Memo. 1996-560



                     UNITED STATES TAX COURT



             GERALD REGINALD PAULSON, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent


     Docket No. 433-96.                Filed December 30, 1996.


     Gerald Reginald Paulson, pro se.

     Blaine Holiday, for respondent.



                          MEMORANDUM OPINION


     COUVILLION, Special Trial Judge:     This case was heard

pursuant to section 7443A(b)(3)1 and Rules 180, 181, and 182.

     Respondent determined the following deficiencies in Federal

income taxes and additions to tax against petitioner:


1
     Unless otherwise indicated, section references are to the
Internal Revenue Code in effect for the years at issue. All Rule
references are to the Tax Court Rules of Practice and Procedure.
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                                               Addition to Tax
             Year          Deficiency          Sec. 6651(a)(1)

             1991           $  896                 $100
             1992            1,485                  184
             1993            1,290                   79


     After concessions by petitioner, the sole issue for decision

is whether petitioner is entitled to the dependency exemption for

his daughter, under section 151, for each of the years in

question.2

     Some of the facts were stipulated, and those facts, with the

annexed exhibits, are so found and are incorporated herein by

reference.     Petitioner was a legal resident of Anoka, Minnesota,

at the time the petition was filed.

     Petitioner was divorced from his wife, Cindy Lou Paulson, on

September 28, 1990.    Petitioner and his former wife had one child

of their marriage, a daughter, Candi Lynn Paulson, who was born

on August 3, 1975.    In a "Second Amended Judgment and Decree",

dated December 24, 1990 (the decree), rendered by a Minnesota

State court, petitioner's former spouse was awarded "The

permanent sole legal and physical custody, care and control of

2
     The dependency exemption is the only adjustment in the
notice of deficiency that was placed at issue in the petition.
At trial, petitioner affirmed his concession of disallowed
alimony payments for the 3 years at issue, taxable unemployment
compensation income for 1992, itemized deduction adjustments for
the 3 years at issue, and the addition to tax under sec.
6651(a)(1) for the 3 years at issue.
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the minor child of the parties", with visitation rights accorded

petitioner.   Petitioner was required to pay, for the support of

the minor child, $456 per month, in equal installments of $228 on

the 1st and 15th days of each month, commencing on October 15,

1990.   The record does not show that, for the years in question,

there were any changes to this support requirement.   The decree

also provided that "Petitioner shall have the right to claim the

minor child of the parties on his federal and state tax returns

provided that he has been current in his child support payments

throughout the calendar year and is current at the time of filing

his tax return."   The decree further provided that petitioner's

former spouse "shall execute IRS Form 8332, Release of Claim to

Exemption for Child of Divorced or Separated Parents, in

accordance with present and future Internal Revenue Code

provisions and corollary state income tax forms, so that the

foregoing Order is fully implemented."

     For each of the years at issue, petitioner claimed his

daughter Candi Lynn as a dependent on his Federal income tax

returns.   However, the returns filed by petitioner did not have

attached thereto Internal Revenue Service (IRS) Form 8332 nor any

other statement executed by petitioner's former spouse that would

contain substantively the same information called for on Form

8332.
                                - 4 -


     In the notice of deficiency, respondent disallowed the

dependency exemption claimed by petitioner on the ground that

petitioner had not established that he was entitled to the

dependency exemption.   At trial, counsel for respondent agreed

that, for the years in question, petitioner was current in his

support obligations for his child; however, petitioner was not

entitled to the dependency exemption for the reason that

petitioner's former spouse, as the custodial parent, had not

released claim to the exemption for the years in question, which

release would be reflected on IRS Form 8332 or any other written

statement conforming thereto.

     The determinations by the Commissioner in a notice of

deficiency are presumed correct, and the burden of proof is on

the taxpayer to prove that the determinations are in error.    Rule

142(a); Welch v. Helvering, 290 U.S. 111 (1933).

     Section 151(c) allows taxpayers an annual exemption amount

for each "dependent" as defined in section 152.    Under section

152(a), the term "dependent" means certain individuals, such as a

son, daughter, stepson, or stepdaughter, "over half of whose

support for the calendar year in which the taxable year of the

taxpayer begins, was received from the taxpayer (or is treated

under subsection (c) or (e) as received from the taxpayer)".

     The support test in section 152(e)(1) applies if:    (1) A

child receives over half of his support during the calendar year
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from his parents; (2) the parents are divorced under a decree of

divorce; and (3) such child is in the custody of one or both of

his parents for more than one-half of the calendar year.    If

these requirements are satisfied, as in the present case, "such

child shall be treated, for purposes of subsection (a), as

receiving over half of his support during the calendar year from

the parent having custody for a greater portion of the calendar

year (* * * referred to as the 'custodial parent')", thus

allowing the dependency exemption to be claimed by the "custodial

parent".

     To decide who has "custody", section 1.152-4(b), Income Tax

Regs., provides that custody "will be determined by the terms of

the most recent decree of divorce" if there is one in effect.

Since petitioner's divorce decree granted custody and physical

possession of petitioner's daughter to his former spouse, the

former spouse is considered the child's "custodial parent" under

section 152(e).

     Petitioner, as the "noncustodial parent", is allowed to

claim the child as a dependent if any one of three statutory

exceptions in section 152(e) is met.   Under these exceptions, the

"noncustodial parent" is treated as providing over half of a

child's support if:

     (1) Pursuant to section 152(e)(2), the custodial parent

signs a written declaration that such custodial parent will not
                                - 6 -


claim such child as a dependent, and the noncustodial parent

attaches such written declaration to the noncustodial parent's

return for the taxable year;

     (2) pursuant to section 152(e)(3), there is a multiple

support agreement between the parties as provided in section

152(c); or

     (3) pursuant to section 152(e)(4), there is a qualified pre-

1985 instrument providing that the noncustodial parent shall be

entitled to any deduction allowable under section 151 for such

child, provided that certain other requisites, not pertinent

here, are met.

     In the present case, the exceptions in section 152(e)(3) and

(4) do not apply.    There was no multiple support agreement and no

pre-1985 instrument.   Therefore, petitioner is entitled to the

dependency exemption only if the requirements of section

152(e)(2) are met.

     Section 152(e)(2)(A) specifically requires that the

custodial parent sign "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".

Pursuant to this statutory provision, temporary regulations

provide that, "The written declaration may be made on a form to

be provided by the Service for this purpose.   Once the Service

has released the form, any declaration made other than on the
                               - 7 -


official form shall conform to the substance of such form."     Sec.

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

34459 (Aug. 31, 1984).3   Internal Revenue Service Form 8332,

Release of Claim to Exemption for Child of Divorced or Separated

Parents, is the IRS form intended to satisfy sec. 152(e)(2)(A),

and this form provides for the (1) name of the children for which

exemption claims were released, (2) years for which the claims

were released, (3) signature of the custodial parent, (4) Social

Security number of the custodial parent, (5) date of signature,

and (6) name and Social Security number of the parent claiming

the exemption.

     Petitioner did not attach IRS Form 8332 to his returns for

any of the years in question, nor did he attach any other written

statement, signed by his former spouse, which would, in

substance, comply with the requirements of section 152(e)(2)(A)

and the temporary regulations thereunder.   Petitioner, therefore,

has not established entitlement to a dependency exemption for his

daughter for the years in question.    Respondent is sustained on

this issue.



3
     The Court notes that temporary regulations have binding
effect and are entitled to the same weight as final regulations.
Peterson Marital Trust v. Commissioner, 102 T.C. 790, 797 (1994),
affd. 78 F.3d 795 (2d Cir. 1996); Truck & Equip. Corp. v.
Commissioner, 98 T.C. 141, 149 (1992); see LeCroy Research Sys.
Corp. v. Commissioner, 751 F.2d 123, 127 (2d Cir. 1984), revg. on
other grounds T.C. Memo. 1984-145.
                               - 8 -


     At trial, petitioner expressed some degree of exasperation

over the fact that the State court judgment expressly allowed him

the dependency exemption "but they didn't tell me that back then

that I had to have a letter of hers saying I could have [the

exemption]".   The court judgment, however, quoted above,

expressly provides that petitioner's former spouse was required

to execute IRS Form 8332 or any other form required by Federal

and State internal revenue laws.   The record is silent as to

whether petitioner ever requested his former spouse to execute

the necessary release.   Petitioner further complained "Why

doesn't the court system work together here?   I mean, why does

the Anoka County court system give me this right, and then the

Federal court says, no, I can't do this.   The IRS says I can't do

this."   The answer to that concern is very simple:   petitioner

did not obtain from his former spouse and attach to his return

the required release; i.e., IRS Form 8332 or any acceptable

written statement.   The Court explained to petitioner that, if

his former wife refused to comply with the requirements of the

divorce decree, his recourse was to seek relief against her in

the State court that issued the decree.    The bottom line is that

the court systems do work, but it is up to the aggrieved party to

seek relief from the appropriate court where the rights of such

party have not been honored.
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             Decision will be entered

        for respondent.
