                        T.C. Memo. 2008-159



                       UNITED STATES TAX COURT



                    ALBERTO CAMPOS, Petitioner v.
            COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 19419-05.              Filed June 24, 2008.



     Alberto Campos, pro se.

     Jeffrey D. Heiderscheit, for respondent.



              MEMORANDUM FINDINGS OF FACT AND OPINION



     VASQUEZ, Judge:    Respondent determined a deficiency of

$3,773 in petitioner’s 2003 Federal income tax.   The issues for

decision are whether petitioner is entitled to dependency

exemption deductions and child tax credits for his three

children.
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                           FINDINGS OF FACT

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

The stipulation of facts and the attached exhibits are

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

petition, petitioner resided in Texas.

     Petitioner and Ruth Femat (Ms. Femat), formerly Ruth Femat

Campos, married in 1992.    They had three children together

(children).   They separated before 2001.     The 65th Judicial

District Court of El Paso County, Texas (district court), granted

petitioner’s and Ms. Femat’s final decree of divorce on August

31, 2004 (divorce decree).

     In the divorce decree, the district court appointed Ms.

Femat and petitioner as joint managing conservators of the

children.    The district court also awarded petitioner custody of

the children for a period amounting to less than one-half of each

calendar year (petitioner had physical custody of the children on

some weekends and holidays and 2 hours on each child’s birthday).

The district court awarded Ms. Femat custody for all times not

specifically awarded to petitioner in the divorce decree.

     The divorce decree requires that petitioner pay Ms. Femat

$982.16 per month in child support.     In addition, the divorce

decree requires petitioner to maintain health insurance on the

children and pay half of all medical expenses not covered by

insurance.    The divorce decree does not address who may claim the
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dependency exemption deductions for the children, and petitioner

and Ms. Femat never entered into an agreement regarding who could

claim the dependency exemption deductions for the children.

                              OPINION

      Petitioner has neither claimed nor shown that he satisfied

the requirements of section 7491(a)1 to shift the burden of proof

to respondent with regard to any factual issue.   Accordingly,

petitioner bears the burden of proof.   See Rule 142(a).

I.   Dependency

      Section 151(a) and (c) allows a deduction for a “dependent”

as defined in section 152.   A son or daughter of the taxpayer,

more than half of whose support during the calendar year is

provided by the taxpayer, is a “dependent”.   Sec. 152(a).

      Section 152(e)(1), however, further provides that if a child

receives more than one-half of his support during the calendar

year from parents who are divorced or legally separated, or who

live apart at all times during the last 6 months of the calendar

year, and if the child is in the custody of one or both of his

parents for more than one-half of the calendar year, then the

child is treated as receiving more than one-half of his support




      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.
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during the year from the parent having custody for the greater

portion of the calendar year (custodial parent).2

      Section 152(e)(2) provides an exception to this rule where

the custodial parent releases the claim to the dependency

exemption deduction for the year.   The custodial parent must sign

a written declaration that the custodial parent will not claim

such child as a dependent for such taxable year, and the

noncustodial parent must attach such written declaration to the

noncustodial parent’s return for that taxable year.    Sec.

152(e)(2).

      Ms. Femat is the custodial parent because she had custody of

the children for more than one-half of the year and is treated as

providing more than one-half of the children’s support.       She has

never executed a written declaration waiving the dependency

exemption deductions for the children.   Because petitioner is the

noncustodial parent and Ms. Femat never executed a waiver of the

exemption deductions, we conclude that petitioner is not entitled

to dependency exemption deductions for the children.

II.   Child Tax Credit

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

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

inter alia, as any individual if “the taxpayer is allowed a



      2
        The noncustodial parent is the parent who is not the
custodial parent. Sec. 152(e)(2).
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deduction under section 151 with respect to such individual for

the taxable year”.   Sec. 24(c)(1)(A).

     We conclude that petitioner is not entitled to dependency

exemption deductions pursuant to section 151 for his three

children for 2003.   Consequently, his children are not qualifying

children pursuant to section 24(c).       Accordingly, petitioner is

not entitled to child tax credits under section 24(a) with

respect to his children for 2003.

     In reaching all of our holdings herein, we have considered

all arguments made by the parties, and to the extent not

mentioned above, we conclude they are irrelevant or without

merit.

     To reflect the foregoing,


                                              Decision will be entered

                                         for respondent.
