                  T.C. Summary Opinion 2007-164



                     UNITED STATES TAX COURT



                 JAMES J. SPUCHES, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 14370-06S.             Filed September 12, 2007.



     James J. Spuches, pro se.

     John M. Janusz, for respondent.



     DEAN, Special Trial Judge:    This case was heard pursuant to

the provisions of section 7463 of the Internal Revenue Code in

effect at the time that the petition was filed.    Pursuant to

section 7463(b), the decision to be entered is not reviewable by

any other court, and this opinion shall not be treated as

precedent for any other case.    Unless otherwise indicated,
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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.

     Respondent determined a $1,458 deficiency in petitioner’s

2003 Federal income tax.    The issues for decision are whether

petitioner is entitled to a:    (1) Dependency exemption deduction;

and (2) child tax credit.

                             Background

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

The stipulation of facts and the exhibits received into evidence

are incorporated herein by reference.     At the time the petition

was filed, petitioner resided in Sylvan Beach, New York.

     Petitioner and Diane E. Spuches (former spouse) obtained a

judgment of divorce in 1994.    Their marriage had produced two

daughters (the children).    In the divorce proceedings, a

stipulation was entered that provided that petitioner would claim

both dependency exemption deductions until his former spouse was

employed and had incurred a tax liability.    On the happening of

that event, the dependency exemption deductions were to be

divided between petitioner and his former spouse.    Additionally,

the former spouse was awarded primary custody.

     The former spouse’s 2003 Federal income tax return showed

sufficient adjusted gross income to require her to file, and she
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incurred a tax liability.   Also, the former spouse had custody of

the children for the greater portion of the year.

     For the 2003 taxable year, petitioner filed a joint income

tax return with his current spouse, who is not a party to this

case.   On the joint return, petitioner claimed dependency

exemption deductions and child tax credits for the children.

Petitioner did not attach a Form 8332, Release of Claim to

Exemption for Child of Divorced or Separated Parents, or its

equivalent to his joint return.

     Respondent issued a notice of deficiency to petitioner.

Respondent denied one of petitioner’s dependency exemption

deductions and a portion of his child tax credits, reasoning that

the former spouse had properly claimed the child as a dependent.

The denial resulted in a $1,458 deficiency.

                              Discussion

     Respondent urges us to sustain the disallowance of

petitioner’s dependency exemption deduction and the portion of

the child tax credit related to the child since petitioner did

not attach a Form 8332 or its equivalent to his 2003 joint

Federal income tax return as required by section 152(e)(2) and

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

Reg. 34459 (Aug. 31, 1984).

     The Commissioner’s determinations in a notice of deficiency

are presumed correct, and the burden is on the taxpayer to prove
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that the determinations are in error.         Rule 142(a); Welch v.

Helvering, 290 U.S. 111, 115 (1933).        However, pursuant to

section 7491(a)(1), the burden of proof on factual issues that

affect the taxpayer’s tax liability may be shifted to the

Commissioner where the “taxpayer introduces credible evidence

with respect to * * * such issue”.         The burden will shift only if

the taxpayer has complied with the substantiation requirements

and the taxpayer “has cooperated with reasonable requests by the

Secretary for witnesses, information, documents, meetings, and

interviews”.    Sec. 7491(a)(2).    Petitioner has not alleged or

proven that section 7491(a) applies.        Accordingly, the burden

remains on petitioner.

1.   Dependency Exemption Deduction

     Section 151(c), in pertinent part, allows a taxpayer to

claim as a deduction the exemption amount for each individual who

is a “dependent” of the taxpayer as defined in section 152 and

who is the taxpayer’s child and satisfies certain age

requirements.

     Section 152(a) defines “dependent”, in pertinent part, to

include a “son or daughter of the taxpayer” 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

section 152(c) or (e) as received from the taxpayer.
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     Section 152(e)(1) provides a general rule that limits the

dependency exemption deduction as follows:   if the child received

over half of his support during the calendar year from his parents

who are divorced under a decree of divorce and the child is in the

custody of one or both parents for more than one-half of the

calendar year, then the child is treated as receiving over half of

his support during the calendar year from the parent having

custody for the greater portion of the calendar year (the

custodial parent).1

     But section 152(e)(2) provides an exception to the general

rule of section 152(e)(1):   “if * * * the custodial parent signs a

written declaration (in such manner and form as the Secretary may

by regulations prescribe)” that he will not claim the child as a

dependent and the noncustodial parent attaches the written

declaration to his return for the taxable year, then the

noncustodial parent is entitled to the dependency exemption

deduction.   For purposes of section 152(e)(2), the term

“noncustodial parent” means the parent who is not the custodial

parent.   Sec. 152(e)(2).   The temporary regulation states that a


     1
       In the present case, the exceptions in sec. 152(e)(3) and
(4) do not apply. There was no multiple support agreement as
defined in sec. 152(c), and since the stipulation in petitioner’s
divorce proceeding was entered in 1994, there is no pre-1985
instrument. Thus, petitioner is entitled to the dependency
exemption deduction only if the requirements of sec. 152(e)(2)
are met.
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noncustodial parent may claim the exemption for a dependent child

“only if the noncustodial 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”.   Sec. 1.152-4T(a), Q&A-3, Temporary Income Tax

Regs., supra.

     The written declaration may be made on a form provided by the

Internal Revenue Service or a document that conforms to its

substance.   Miller v. Commissioner, 114 T.C. 184, 190-191 (2000)

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

supra); see also Neal v. Commissioner, T.C. Memo. 1999-97.    The

written declaration is embodied in Form 8332, which incorporates

the requirements of section 152(e)(2).   Miller v. Commissioner,

supra at 191.2

     In Miller v. Commissioner, supra, the Court stated that in

order for the noncustodial parent to claim the dependency

exemption deduction, section 152(e)(2) clearly required the

custodial parent to release the dependency exemption deduction by

signing a written declaration to that effect.   Id. at 195.   Simply


     2
       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, (4) the custodial parent’s Social Security
number, (5) the date of the custodial parent’s signature, and (6)
the noncustodial parent’s name and Social Security number.
Miller v. Commissioner, 114 T.C. 184, 190 (2000).
                                 - 7 -

attaching a State court order that was not signed by the custodial

parent to the return of the noncustodial parent did not satisfy

the express requirements of section 152(e)(2).      Id. at 196.    The

mere fact that the State court granted the taxpayer the right to

claim the dependency exemption deduction was immaterial because a

State court cannot determine issues of Federal tax law.      Id.

(citing Kenfield v. United States, 783 F.2d 966, 969 (10th Cir.

1986) and White v. Commissioner, T.C. Memo. 1996-438 (citing with

approval Commissioner v. Tower, 327 U.S. 280, 287-288 (1946))).

     The parties agree that the former spouse had custody of the

children for the greater portion of the taxable year; therefore,

petitioner is not the “custodial parent” as defined in section

152(e)(1).   Because petitioner, the noncustodial parent, did not

attach Form 8332 or its equivalent to his joint return, he is not

entitled to the dependency exemption deduction.     Accordingly, we

sustain respondent’s disallowance of the dependency exemption

deduction.

 2. Child Tax Credit

     Section 24(a) provides a credit against income tax for each

“qualified child” of a taxpayer who is under 17 years of age.       A

“qualified child” is one for whom a taxpayer may claim a deduction

under section 151.     Sec. 24(c)(1)(A).   Thus, a taxpayer is

ineligible for the child tax credit under section 24(a) unless the

taxpayer is eligible for the dependency exemption deduction under
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section 151.   Because we have determined that petitioner is not

entitled to the dependency exemption deduction, it follows that he

is not entitled to the child tax credit.   Accordingly, we sustain

respondent’s disallowance of the child tax credit.

     To reflect the foregoing,


                                                  Decision will be

                                            entered for respondent.
