                  T.C. Summary Opinion 2006-118



                     UNITED STATES TAX COURT



          NASSER AND SCOTTIANN ZAMANI, Petitioners v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 12899-05S.            Filed July 24, 2006.


     Nasser and Scottiann Zamani, pro sese.

     Wesley F. McNamara, for respondent.



     PANUTHOS, Chief Special Trial Judge:     This case was heard

pursuant to the provisions of section 7463 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.    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 -

     Respondent determined a $1,604 deficiency in petitioners’

2003 Federal income tax.    The issue for decision is whether

petitioners are entitled to a deduction for dependency exemptions

for petitioner husband’s son and daughter from a prior marriage.

                                Background

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

The stipulation of facts with attached exhibits, and additional

exhibits admitted at trial, are incorporated herein by this

reference.    At the time the petition was filed, petitioners

resided in West Linn, Oregon.      Unless otherwise indicated, all

references to petitioner are to Nasser Zamani.

     Petitioner was formerly married to Alice Woodworth (Ms.

Woodworth).    Petitioner and Ms. Woodworth have three children:

(1) Cyrus Zamani, born in 1983; (2) Nathan Zamani, born in 1986;

and (3) Lila Zamani, born in 1988.        Petitioner and Ms. Woodworth

were divorced on March 3, 1993, pursuant to a divorce decree

issued by an Oregon State court.        The divorce decree provides in

relevant part:

     4.   Issues Relating to Children:

          A. Custody: The parties shall have joint
     physical custody of the minor children * * *. The
     children are to reside primarily at the mother’s
     address for medical and educational purposes.

                 *    *     *       *        *    *     *
                               - 3 -

          C.   Parenting Schedule:

          School Year: * * * Mr. Zamani will have
     parenting responsibilities with the minor children of
     the parties during the school year from Friday
     following supper at 7:00 p.m. through Sunday at 9:00
     a.m. following breakfast on one weekend, to be followed
     the next consecutive weekend by a schedule of Saturday
     before lunch at noon through Sunday following supper at
     7:00 p.m.

               *    *     *     *        *     *     *

          Additionally, Mr. Zamani will parent the children
     Wednesday evenings to begin at 5:30 p.m. * * * until
     9:00 p.m.

               *    *     *     *       *     *     *

          Summer: * * * The weekend schedule will remain
     the same as stated for the school year. The weekday
     schedule will change.

          Mr. Zamani will parent the children two days per
     week which includes overnight time for those days. The
     days will be either Monday and Wednesday or Tuesday and
     Thursday from 5:30 p.m. * * * until 7:00 a.m. the next
     morning. * * *

With respect to holidays and other special occasions, the divorce

decree generally provides that petitioner and Ms. Woodworth will

share or alternate parenting responsibilities.     It also provides

that “Mr. Zamani shall be granted the tax exemptions for the

three children for 1992 and continuing thereafter for so long as

he is current with child support.”     Petitioner was current with

child support from the time of the divorce through 2003.

     In addition to their regularly scheduled visits, Nathan and

Lila often spent additional time with petitioner.    For example,

Nathan lived with petitioners for 3 consecutive months toward the
                               - 4 -

end of 2003.   Lila also occasionally lived with petitioners for

weeks at a time.   Petitioner did not introduce records of the

time Nathan and Lila spent with him.

     On their 2003 joint Federal income tax return, petitioners

claimed a deduction for dependency exemptions for Nathan and

Lila.1   Petitioners did not attach to their return a Form 8332,

Release of Claim to Exemption for Child of Divorced or Separated

Parents, executed by Ms. Woodworth.    Petitioner had asked Ms.

Woodworth to sign a Form 8332, but she refused to do so.

Respondent issued petitioners a notice of deficiency in June

2005, disallowing the claimed deduction for dependency

exemptions.

                            Discussion

     In general, the Commissioner’s determinations set forth in a

notice of deficiency are presumed correct, and the taxpayer bears

the burden of showing that the determinations are in error.    Rule

142(a); Welch v. Helvering, 290 U.S. 111, 115 (1933).    Pursuant

to section 7491(a), the burden of proof as to factual matters

shifts to respondent under certain circumstances.    Petitioners

have neither alleged that section 7491(a) applies nor established

their compliance with the requirements of section 7491(a)(2)(A)

and (B) to substantiate items, maintain records, and cooperate


     1
       Petitioners did not claim a deduction with respect to
Cyrus, and his status as a dependent is not in issue.
                                 - 5 -

fully with respondent’s reasonable requests.    Petitioners

therefore bear the burden of proof.

     A taxpayer may be entitled to claim as a deduction an

exemption amount for each of his or her dependents.    Sec. 151(c).

An individual must meet the following five tests in order to

qualify as a dependent of the taxpayer:    (1) Support test; (2)

relationship or household test; (3) citizenship or residency

test; (4) gross income test; and (5) joint return test.    Secs.

151 and 152; Brissett v. Commissioner, T.C. Memo. 2003-310.     If

the individual fails any of these tests, he or she does not

qualify as a dependent.

     With respect to the support test, a taxpayer generally must

provide more than half of a claimed dependent’s support for the

calendar year in which the taxable year of the taxpayer begins.

Sec. 152(a).    In the case of a child of divorced parents, if the

child is in the custody of one or both of his parents for more

than half of the calendar year and receives more than half his

support during that year from his parents, such child shall be

treated, for purposes of section 152, as receiving over half of

his support during the calendar year from the parent having

custody for a greater portion of the calendar year (the custodial

parent).    Sec. 152(e)(1).   The word “custody” as used in section

152(e) is defined in section 1.152-4(b), Income Tax Regs., which

provides:
                              - 6 -

     “Custody,” for purposes of this section, will be
     determined by the terms of the most recent decree of
     divorce or separate maintenance, or subsequent custody
     decree, or, if none, a written separation agreement.
     In the event of so-called “split” custody, or if
     neither a decree or agreement establishes who has
     custody, * * * “custody” will be deemed to be with the
     parent who, as between both parents, has the physical
     custody of the child for the greater portion of the
     calendar year. [Sec. 1.152-4(b), Income Tax Regs.]

     A custodial parent may release claim to the exemption

pursuant to the provisions of section 152(e)(2), which provides:

          SEC. 152(e). Support Test in Case of Child of
     Divorced Parents, Etc.--

              *     *     *     *     *     *     *

          (2) Exception where custodial parent releases
     claim to exemption for the year.--A child * * * shall
     be treated as having received over half of his support
     during a calendar year 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.

          For purposes of this subsection, the term
          “noncustodial parent” means the parent who is
          not the custodial parent.

     The temporary regulations promulgated with respect to

section 152(e)(2) provide that a noncustodial parent may claim

the exemption for a dependent child “only if the noncustodial
                              - 7 -

parent attaches to his/her income tax return for the year of the

exemption a written declaration from the custodial parent stating

that he/she will not claim the child as a dependent for the

taxable year beginning in such calendar year.”1    Sec.

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

34459 (Aug. 31, 1984); see also Miller v. Commissioner, 114 T.C.

184, 188-189 (2000), affd. on another ground sub nom. Lovejoy v.

Commissioner, 293 F.3d 1208 (10th Cir. 2002).     The declaration

required under section 152(e)(2) must be made either on a

completed Form 8332 or on a statement conforming to the substance

of Form 8332.   Miller v. Commissioner, supra at 189; Brissett v.

Commissioner, supra.

     Form 8332 requires a taxpayer to furnish:    (1) The names of

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

years for which the claims were released, (3) the signature of

the custodial parent confirming his or her consent, (4) the

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

the custodial parent’s signature, and (6) the name and the Social

Security number of the parent claiming the exemption.     Miller v.

Commissioner, supra at 190.




     1
       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).
                               - 8 -

1.   Petitioner Was Not the Custodial Parent in 2003

     Petitioner and Ms. Woodworth share custody of Nathan and

Lila; however, the divorce decree indicates that Ms. Woodworth

has custody for the greater portion of the calendar year.

Accordingly, Ms. Woodworth was the custodial parent for purposes

of section 152(e).   See sec. 1.152-4(b), Income Tax Regs.

     Petitioner credibly testified that Nathan and Lila often

spent time in his home in addition to the visits specified in the

divorce decree.   Petitioner estimated that each child lived with

him and his wife for approximately 5 to 6 months in 2003, with

the remainder of the time spent at Ms. Woodworth’s residence.

Petitioner conceded, however, that his estimates were “very

approximate” because he did not have “a clear record [of]    * * *

how many days [or] which days” the children spent with him.

     Assuming arguendo that the divorce decree does not establish

Ms. Woodworth as the custodial parent, petitioner has not

demonstrated that he was the custodial parent in 2003.

Petitioner introduced no records to support his estimates and

acknowledged he could not remember exactly how much time his

children spent with him in 2003.   Even if we accepted the

accuracy of petitioner’s estimates, the time Nathan and Lila

spent with him would not constitute “a greater portion of the

calendar year”.   Sec. 152(e)(1) (flush language).   We therefore
                                - 9 -

conclude that Ms. Woodworth was the custodial parent and

petitioner was the noncustodial parent in 2003.

2.   Petitioners Did Not Attach a Form 8332 or Other Declaration
     to Their 2003 Tax Return

     Because petitioner was the noncustodial parent for purposes

of section 152(e), petitioners are not entitled to the claimed

dependency exemptions unless they complied with the provisions of

section 152(e)(2) and the regulations thereunder by attaching to

their return a written declaration or Form 8332 executed by Ms.

Woodworth.    Petitioners did not attach such a declaration or Form

8332 to their return, and as a result, they are not entitled to

the deduction for dependency exemptions for Nathan and Lila in

2003.

     Petitioner nevertheless argues that he is current in his

child support obligation and that, under the terms of the divorce

decree, he is entitled to the deduction for dependency

exemptions.   Petitioner testified that Ms. Woodworth has

consistently refused to execute the Form 8332, as well as other

documents he has given her.   Petitioner considered seeking a

court order to compel Ms. Woodworth to execute the Form 8332,

but, based on his past experience in seeking a similar order, he

believed it would cost approximately $2,000 in attorney’s fees to

do so.   Because this amount exceeds the $1,604 in issue,

petitioner believes he is “caught * * * in the middle” between
                               - 10 -

Ms. Woodworth’s alleged intransigence and the tax laws’ apparent

inability to give effect to his divorce decree.

     As we have said in cases involving similar facts, we are not

unsympathetic to petitioner’s position.    See Brissett v.

Commissioner, T.C. Memo. 2003-310; Neal v. Commissioner, T.C.

Memo. 1999-97.   However, we are bound by the language of the

statute as it is written and the accompanying regulations, when

consistent therewith.   Michaels v. Commissioner, 87 T.C. 1412,

1417 (1986).   The Internal Revenue Code is clear as to the

precise requirements for a noncustodial parent to become entitled

to a dependency exemption.    See Neal v. Commissioner, supra.

Because petitioner does not meet those requirements, respondent

is sustained on this issue.

     Reviewed and adopted as the report of the Small Tax Case

Division.

     To reflect the foregoing,


                                      Decision will be entered for

                                 respondent.
