                  T.C. Summary Opinion 2004-95



                     UNITED STATES TAX COURT



                 KEITH A. BRETTIN, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 12652-02S.             Filed July 26, 2004.


     Roy Michael Roush, for petitioner.

     Angela J. Kennedy, 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.   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.
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The decision to be entered is not reviewable by any other court,

and this opinion should not be cited as authority.

     Respondent determined for 2000 a deficiency in Keith A.

Brettin's Federal income tax of $3,015.   After concessions,1 the

issue for decision is whether petitioner is entitled to a

dependency exemption deduction with respect to a child from his

former marriage.

     The stipulated facts and the exhibits received into evidence

are incorporated herein by reference.    At the time the petition

in this case was filed, petitioner resided in Knox, Indiana.

                            Background

     Petitioner was divorced from Mrs. Debra Brettin (Mrs.

Brettin) during 1991.   The Brettins had one child during their

marriage, Keith Brettin II, who was born on August 14, 1989.     In

their settlement agreement (agreement), which was to be

incorporated into their final decree of divorce, Mrs. Brettin was

granted sole custody of their child, with petitioner having

visitation rights.   The agreement also stated that petitioner

would be entitled to claim State and Federal dependency exemption



     1
      Petitioner concedes that his proper filing status is
single, not head of household. Additionally, if the Court holds
that petitioner is not entitled to claim the dependency exemption
deduction for his son, petitioner concedes that he is not
entitled to claim the child tax credit. If the Court holds that
petitioner is entitled to claim the dependency exemption
deduction for his son, respondent concedes that petitioner is
entitled to claim the child tax credit.
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deductions for their son, and required Mrs. Brettin to sign a

Form 8332, Release of Claim to Exemption for Child of Divorced or

Separated Parents, annually.2   The agreement did not contain the

child's name or the Social Security number of either petitioner

or Mrs. Brettin.

     Petitioner timely filed a Form 1040, U.S. Individual Income

Tax Return, for 2000.   On that return, he claimed a dependency

exemption deduction for his son.   Mrs. Brettin did not sign a

Form 8332 or a statement conforming to the substance of Form

8332, and petitioner did not attach such documentation to his

Form 1040.

     When petitioner attempted to electronically file his tax

return for 2000, he was notified that respondent had received two

or more 1998 Federal individual income tax returns using the same

Social Security number to claim a tax benefit.   In a notice of

deficiency dated May 6, 2002, respondent disallowed the

dependency exemption deduction, and the child tax credit

petitioner claimed.

                            Discussion

     The Commissioner's determinations in a notice of deficiency

are presumed correct, and generally, taxpayers bear the burden of



     2
      In the original draft of the agreement, petitioner and Mrs.
Brettin had agreed that Mrs. Brettin would sign Forms 8332 "for
all future years". That language was changed to "on a yearly
basis".
                                - 4 -

proving that the Commissioner's determination of income tax

deficiencies is incorrect.    Rule 142(a); Welch v. Helvering, 290

U.S. 111, 115 (1933).    Under section 7491, the burden of proof

with respect to factual issues relevant to ascertaining the tax

liability of the taxpayer may shift to the Commissioner in

certain circumstances.    Higbee v. Commissioner, 116 T.C. 438,

440-441 (2001).   The issues in this case are questions of law,

and the Court decides the issues without regard to the burden of

proof.

     There is no dispute that petitioner's child is a "dependent"

as defined in section 152 and the child received, during the year

at issue, over half of his support from his parents.    The issue

here is which parent is entitled to the dependency exemption

deduction.

     Where the parents are divorced and a child is in the custody

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

year, section 152(e)(1) allows the dependency exemption deduction

to the "custodial parent".    Section 1.152-4(b), Income Tax Regs.,

provides generally that the custodial parent is determined by the

most recent decree of divorce in effect between the parties.      In

this case, there is no dispute that Mrs. Brettin was the

custodial parent for their son.    The noncustodial parent,

however, is allowed a dependency exemption deduction under

section 152(e)(2) if the custodial parent signs a written
                                 - 5 -

declaration that such custodial parent will not claim such child

as a dependent, and the noncustodial parent attaches such written

declaration to the noncustodial parent's income tax return for

the taxable year.

     Petitioner acknowledges that he never obtained from Mrs.

Brettin a completed Form 8332.    However, petitioner contends that

their agreement is a written declaration that is substantially

the equivalent of a Form 8332.

     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.    Sec. 1.152-4T(a), Q&A-3,

Temporary Income Tax Regs., 49 Fed. Reg. 34459 (Aug. 31, 1984).

The exemption may be released for a single year, for a number of

specified years, or for all future years "as specified in the

declaration."   Sec. 1.152-4T(a), Q&A-4, Temporary Income Tax

Regs., 49 Fed. Reg. 34459 (Aug. 31, 1984).

     Form 8332 requires a taxpayer to agree not to claim a

dependency exemption and to furnish:     (1) The name of the child

for whom exemption claims are released, (2) the years for which

the claims are released, (3) the signature of the custodial

parent, (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, 114 T.C. 184, 190 (2000).
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     The agreement between petitioner and Mrs. Brettin does not

contain their son's name or the Social Security number of either

parent.    Most importantly, it does not contain the signature of

Mrs. Brettin, signifying her agreement not to claim their son as

a dependent.    See id. at 191-194.   She apparently did claim him

as a dependent on her return for 2000.      See White v.

Commissioner, T.C. Memo. 1996-438.      The agreement fails to

qualify as a written declaration that conforms to the substance

of Form 8332.

        Because petitioner, the noncustodial parent, did not meet

the requirements of the Federal income tax statute, he simply

does not come within the exception provided for in section

152(e)(2).    Accordingly, the Court holds that petitioner is not

entitled to a dependency exemption deduction for his son for

2000.

     Reviewed and adopted as the report of the Small Tax Case

Division.

                                        Decision will be entered

                                for respondent.
