                  T.C. Summary Opinion 2005-110



                     UNITED STATES TAX COURT



BROOKS EDWARD OMANS AND TONYA RENEE OMANS RATEAU, Petitioners v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 4919-02S.               Filed August 1, 2005.


     Craig D. Bell and Flora Leigh T. Hezel, for petitioners.

     Mary Ann Waters, for respondent.


     POWELL, Special Trial Judge:   This case was heard pursuant

to the provisions of section 74631 of the Internal Revenue Code

in effect at the time the petition was filed.   The decision to be

entered is not reviewable by any other court, and this opinion

should not be cited as authority.



1
     Unless otherwise indicated, 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 of Practice
and Procedure.
                                 - 2 -

       Petitioner refers only to Brooks Edward Omans.   Respondent

determined a deficiency of $1,610 in petitioners’ 1998 Federal

income tax.   The issues are whether petitioners are entitled to

claim dependency exemption deductions under section 151 and child

tax credits under section 24 for petitioner’s two minor children

from a previous marriage.   At the time the petition was filed

petitioner resided in Fort Eustis, Virginia, and Ms. Rateau

resided in Hampton, Virginia.2

                            Background

     This case was submitted fully stipulated under Rule 122.

Pursuant to a Decree of Dissolution of Marriage (divorce decree)

entered by the Circuit Court of Greene County, Missouri,

petitioner and Jana Lynn Johnmeyer (Ms. Johnmeyer) were divorced

on February 24, 1993.   Together they have two minor children.

The divorce decree awarded joint legal custody of the children to

petitioner and Ms. Johnmeyer, with Ms. Johnmeyer having primary

physical custody (custodial parent).

      Incorporated into the divorce decree is a settlement

agreement and custodial plan executed by petitioner and Ms.

Johnmeyer in 1992.   The settlement agreement contains the names

of the two children, Ms. Johnmeyer’s name, her signature, and




2
     Petitioners divorced prior to filing the petition.
                               - 3 -

petitioner’s name.3   Ms. Johnmeyer’s signature appears on these

documents a total of three times, and the settlement agreement

was certified by a notary public of Greene County, Missouri.    The

notary’s certification includes the date, the notary’s commission

expiration date and signature, and the following statement:

“JANA LYNN OMANS, of lawful age, being first duly sworn upon her

oath, states that she is the Petitioner in the above-entitled

cause, and that she has executed the foregoing Agreement as her

free act and deed.”

     The settlement agreement specifies that petitioner and Ms.

Johnmeyer agreed to “file separate income tax returns for the

1992 tax year and for each year thereafter.”   Petitioner and Ms.

Johnmeyer further agreed that “[petitioner] shall be allowed to

claim the parties’ minor children as dependents within the

meaning of both state and federal income tax laws so long as [he]

is current on his monthly child support obligation”.

Petitioner’s monthly child support payments are made directly to

the Circuit Clerk of Greene County as trustee for Ms. Johnmeyer.

Respondent has stipulated that petitioner was up to date on all

child support payments from the time he entered into the

settlement agreement up through and including the year at issue.4


3
     At the time she signed the settlement agreement, Ms.
Johnmeyer was still known as Jana Lynn Omans.
4
     Petitioner provided respondent with documents from the
                                                   (continued...)
                               - 4 -

     On their 1998 Federal income tax return, petitioners claimed

dependency exemption deductions and child tax credits for

petitioner’s two children from his marriage to Ms. Johnmeyer and

attached a copy of the divorce decree and the settlement

agreement to the return.5   Respondent notified petitioners by

letter dated April 18, 2000, that their 1998 return was under

examination due to the claimed dependency exemption deductions

and child tax credits.   Ms. Johnmeyer also claimed dependency

exemption deductions for the two children when she jointly filed

a Form 1040, U.S. Individual Income Tax Return, for the taxable

year 1998, with her current husband, Donald Hicks.6

     After the examination of their 1998 return, respondent

issued petitioners a 30-day letter disallowing the claimed

dependency exemption deductions and child tax credits.

Petitioners then timely filed a protest letter, and their case



4
 (...continued)
Circuit Court of Greene County stating that his child support
obligation was current.
5
     Petitioner was prepared to testify that he has claimed
dependency exemption deductions for his two children for every
year from 1993 through 1997. The record does not state whether
or not a written declaration regarding the custodial parent’s
waiver of the exemptions was attached to those returns. Each
taxable year stands on its own and must be separately considered.
Pekar v. Commissioner, 113 T.C. 158, 166 (1999). Respondent is
not bound in any given year to allow the same treatment permitted
in a previous year. Id.
6
     The record is unclear as to when exactly Ms. Johnmeyer
remarried.
                               - 5 -

was sent to the Internal Revenue Service’s Appeals Division.

     The Appeals officer concluded that petitioners were not

entitled to the dependency exemption deductions.    The letter

specifically pointed out that what they needed was a Form 8332,

Release of Claim to Exemption for Child of Divorced or Separated

Parents, signed by the custodial parent.

     After receiving the Appeals officer’s decision letter,

petitioner contacted Ms. Johnmeyer and asked her to sign a Form

8332.7   On the advice of her attorney, Ms. Johnmeyer executed a

Form 8332, and petitioner then forwarded it to the Appeals

officer.

     Ms. Johnmeyer, however, did not execute the Form 8332

properly.   Form 8332 is comprised of two parts.   Each part

requires the names of the dependents, the year or years to which

the waiver will apply, the custodial parent’s signature, the

Social Security number of the custodial parent, and the date of

the signature.   Part I is entitled “Release of Claim to Exemption

for Current Year” and Part II is entitled “Release of Claim to

Exemption for Future Years”.   In Part I, designated for the

current year, Ms. Johnmeyer provided the names of the two

children and the year “1999”, but did not provide her signature,


7
     The settlement agreement also includes a construction and
execution clause, where petitioner and Ms. Johnmeyer agreed “to
promptly execute and deliver to the other all necessary documents
* * * as may be required to effect the terms and conditions of
this Agreement”.
                               - 6 -

her Social security number, or the date.   In Part II, designated

for future years only, she provided the names of the two

children, listed the years “1993, 1994, 1995, 1996, 1997, 1998”,

signed the form, and provided her Social security number and the

date.

     The Appeals officer contacted Ms. Johnmeyer and requested

that she amend her 1998 return by removing the two children as

dependents.   Ms. Johnmeyer then wrote the Appeals officer

claiming that she had signed the Form 8332 under duress.     Ms.

Johnmeyer did not amend her 1998 return, and respondent issued

petitioners a statutory notice of deficiency for the 1998 taxable

year.

                            Discussion

1.   Dependency Exemption Deduction

     Sections 151 and 152 provide that a taxpayer is entitled to

deduct an exemption for a dependent if the taxpayer provides over

half of the support for the dependent.   Under section 152(e)(1),

in the case of a minor dependent whose parents are divorced or

separated and together provide over half of the support for the

minor dependent, the parent having custody for a greater portion

of the calendar year (custodial parent) generally shall be

treated as providing over half of the support for the minor

dependent.

     Petitioner is not the custodial parent and thus is not
                               - 7 -

entitled to the dependency exemption deductions under section

152(e)(1).   A noncustodial parent may be entitled to dependency

exemption deductions if one of three exceptions in section 152(e)

is satisfied.   The only exception relevant to this case is

contained in section 152(e)(2).   Section 152(e)(2) provides that

a child shall be treated as having received over half of his or

her support from the noncustodial parent 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 parent's return for the
     taxable year beginning during such calendar year.

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

Fed. Reg. 34459 (Aug. 31, 1984),8 further provides:

     The written declaration may be made on a form to be
     provided by the Service for this purpose. * * *

     The 1954 Code gave the dependency exemption deduction to the

parent who contributed more than one-half of the support of the

child for the year.   Difficulties were encountered in

establishing this requirement, as both parents often honestly

believe they contributed more than one-half of the support.    The


8
     Temporary regulations are entitled to the same weight as
final regulations. See 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 also
LeCroy Research Sys. Corp. v. Commissioner, 751 F.2d 123, 127 (2d
Cir. 1984), revg. on other grounds T.C. Memo. 1984-145.
                               - 8 -

Internal Revenue Service then found itself “in the position of an

unwilling arbiter between the contending parents.”   S. Rept. 90-

488, 90th Cong., 1st Sess. 1528 (1967).

     In order to keep the Internal Revenue Service out of these

disputes, section 152(e), as amended in 1966, provided as a

general rule that the parent who had custody of a child for the

greater portion of the year is entitled to the deduction.   Act of

Aug. 31, 1967, Pub. L. 90-78, 81 Stat. 191.   Congress recognized

that divorcing parents often take dependency exemptions into

account when dividing the financial assets of a marriage, and an

exception to this general rule included instances where the

parent who had custody for the lesser period was granted the

deduction as part of a divorce decree or separate maintenance

agreement.

     Accounting for custody proved as difficult as tracking

support and still presented the same problem of substantiation

and proof.   H. Rept. 98-432 (Part 2), at 1498 (1984).   Congress

again amended section 152(e) to “[allow] the custodial spouse the

exemption unless that spouse waives his or her right to claim the

exemption” still with the intention that dependency disputes

between parents would be resolved without the involvement of the

Internal Revenue Service.   Id. at 1499.9


9
     In October 2004, as part of the Working Families Tax Relief
Act of 2004, Pub. L. 108-311, sec. 201, 118 Stat. 1169, sec.
                                                   (continued...)
                               - 9 -

2.   Written Declaration Requirement

      Pursuant to the regulations, the Internal Revenue Service

issued Form 8332 as a way to satisfy the written declaration

requirement of section 152(e)(2).   Form 8332 instructs the

taxpayer to provide (1) the names of the children for whom

exemption claims were released, (2) the years the claims are to

be released, (3) the signature of the custodial parent to confirm

their consent, (4) the Social Security number of the custodial

parent, (5) the date of the custodial parent’s signature, and (6)

the name and Social Security number of the parent claiming the

exemption.   If Form 8332 is not used, a statement conforming to

the substance of Form 8332 must be used.    See sec. 1.152-4T(a),

Q&A-3, Temporary Income Tax Regs., supra.

      The settlement agreement petitioner attached to his return

contains the names of the two children, the custodial parent’s

signature as witnessed by a notary’s certification, the date of

her signature, and petitioner’s name.   It does not contain the

Social Security number of either the custodial parent or of

petitioner, or literal reference to the year 1998.


9
 (...continued)
152(e)(2) was amended to include reference to the allocation of
the dependency exemption deduction to the noncustodial parent in
a divorce decree. Under this current version, the noncustodial
parent will be entitled to the dependency exemption deduction
where the custodial parent signs a written declaration waiving
the right to claim it or the dependency exemption deduction is
allocated to the noncustodial parent pursuant to a State divorce
decree.
                              - 10 -

     The omission of either parent’s Social Security number is

not a determinative factor, as it is not required by the language

of section 152(e)(2).   Bramante v. Commissioner, T.C. Memo. 2002-

228; White v. Commissioner, T.C. Memo. 1996-438.     Although the

settlement agreement did not list each and every year to which

petitioner’s entitlement to the dependency exemption deductions

was to apply, we find it clearly refers to the separate returns

of petitioner and Ms. Johnmeyer “for the 1992 tax year and for

each year thereafter”, thus including the year at issue.      See

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

     As the custodial parent, Ms. Johnmeyer’s signature on the

proffered written declaration is critical to the successful

release of the dependency exemption deductions.     See Neal v.

Commissioner, T.C. Memo. 1999-97; Paulson v. Commissioner, T.C.

Memo. 1996-560; White v. Commissioner, supra.     The signature

requirement demands more than a mere acknowledgment.       Miller v.

Commissioner, 114 T.C. 184, 193 (2000).   It must confirm the

custodial parent’s intention to release the dependency exemption

to the noncustodial parent and signify the custodial parent’s

agreement not to claim the dependency exemption.     Id.

     There is no doubt that Ms. Johnmeyer signed the settlement

agreement petitioner attached to his return.    Her signature

appears on the settlement agreement three times.    Respondent

contends that her signature fails to signify her intent to not
                              - 11 -

claim the dependency exemption deductions, due to the absence of

the language “will not claim” from the settlement agreement.     We

find that Ms. Johnmeyer’s notarized signature indicates more than

a mere acknowledgment of the form of the settlement agreement.

The certification of her signature by a notary public imports

prima facie truth of its own pertinent recitals.    See Estate of

Williams v. Commissioner, T.C. Memo. 1955-321.     The notary

certification not only affirms that Ms. Johnmeyer did in fact

state “that she is the Petitioner in the above-entitled cause”

when she signed the settlement agreement, but also that she

“executed the foregoing Agreement as her free act and deed”,

thereby agreeing that petitioner would have the dependency

exemption deductions when court ordered and monitored child

support payments were up to date.   We find that the custodial

parent’s certified signature on the settlement agreement

signifies her sworn agreement to the settlement agreement’s

contents, including petitioner’s entitlement to the dependency

exemption deductions.   See Miller v. Commissioner, supra at 193.

     But, even the proper execution of a Form 8332, which

includes the literal language “agree not to claim”, is no

guarantee that the custodial parent does not intend to claim a

dependency exemption deduction when he or she has agreed that the

noncustodial parent is entitled to the deduction, and thus avoid

involving the Service and this Court in a dependency exemption
                               - 12 -

dispute.   See King v. Commissioner, 121 T.C. 245, 253 (2003);

Bramante v. Commissioner, supra.   Although we generally do not

look behind the notice of deficiency to examine the evidence used

or the propriety of the Commissioner’s motives or of the

administrative policy or procedure involved in making the

determinations, Greenberg’s Express, Inc. v. Commissioner, 62

T.C. 324, 327 (1974), the stipulated facts indicate that not only

was petitioner current on his court ordered and monitored child

support obligation, but that petitioner would have had a

difficult time in procuring a properly signed Form 8332 from the

custodial parent.10   Therefore, without insisting that petitioner

further rely on the doubtful cooperation of the custodial parent,

we find that the attached settlement agreement satisfied the

written declaration requirement of section 152(e)(2).

     As seen in the legislative history, underlying section

152(e)(2) is Congress’s recognition of the use of dependency

exemption deductions in divorce settlements.   The legislative

history of section 152(e) illustrates how various literal

expressions have failed to implement the congressional intent of



10
     Rule 91(a)(1) requires the parties to stipulate to the
fullest extent all matters not privileged that are relevant to
the case, regardless of whether such matters involve fact or
opinion or the application of the law to fact. Stipulations are
binding on the parties to the stipulation, unless the parties
agree otherwise or the Court relieves a party from the binding
effect “where justice requires.” Rule 91(e). Justice does not
require us to disregard any of the stipulations in this case.
                               - 13 -

lessening the Internal Revenue Service’s involvement in these

disputes.   Accordingly, respondent’s insistence on the presence

of Form 8332 or the language “agree not to claim” or “will not

claim” in this case was overly formalistic and ultimately

undermined the intent of section 152(e)(2).    We find that

petitioners are entitled to the dependency exemption deductions

for 1998.

3.   Child Tax Credit

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

for “each qualifying child”.    A qualifying child is defined as

any individual if “the taxpayer is allowed a deduction under

section 151 with respect to such individual for the taxable

year”.   Sec. 24(c)(1)(A).   Petitioners are entitled to claim

dependency exemption deductions under section 151; they are

therefore also entitled to the child tax credits.

     Reviewed and adopted as the report of the Small Tax Case

Division.

                                          Decision will be entered

                                     for petitioners.
