                  T.C. Summary Opinion 2009-167



                      UNITED STATES TAX COURT



                   ADAM SANCHEZ, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 11162-08S.               Filed November 12, 2009.


     Adam Sanchez, pro se.

     Brook R. Barrow, for respondent.



     WHERRY, Judge:   This case was heard pursuant to the

provisions of section 7463 of the Internal Revenue Code in effect

when the petition was filed.1   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


     1
      Unless otherwise indicated, all section references are to
the Internal Revenue Code of 1986, as amended and in effect for
the tax year at issue. All Rule references are to the Tax Court
Rules of Practice and Procedure.
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case.   Petitioner petitioned the Court to redetermine a

deficiency for his 2006 tax year.    The issues for decision are

whether petitioner is entitled to a dependency exemption

deduction and a child tax credit for 2006.

                              Background

     The parties submitted this case to the Court fully

stipulated pursuant to Rule 122.    The stipulated facts and

accompanying exhibits are incorporated herein by this reference.

Petitioner resided in Texas when he filed his petition.

     Petitioner and his former spouse are co-conservators of

their two minor children, ALS and AJS.     An Order In Suit To

Modify Parent-Child Relationship, issued by the 37th Judicial

District Court, Bexar County, Texas, and dated September 13,

2006, provides in pertinent part that petitioner “shall have the

right in accordance with section 152(e)(2) of the Internal

Revenue Code, to claim the dependency exemption for * * * [ALS]

for the purpose of federal income taxes for 2006 and other

subsequent calendar years.”    Petitioner claimed a $3,300

dependency exemption deduction and a $1,000 child tax credit for

ALS on his 2006 Form 1040, U.S. Individual Income Tax Return.

Petitioner’s former spouse, on her 2006 Form 1040A, U.S.

Individual Income Tax Return, also claimed a dependency exemption

deduction for ALS for the 2006 tax year.
                                - 3 -

       On February 11, 2008, respondent issued petitioner a notice

of deficiency with respect to petitioner’s 2006 tax year,

disallowing his claimed dependency exemption deduction and child

tax credit.    As a result, respondent determined a $1,825 Federal

income tax deficiency.    Petitioner, on May 12, 2008, timely

petitioned this Court.

                             Discussion

I.    Burden of Proof

       Deductions are a matter of legislative grace, and the

taxpayer must maintain adequate records to substantiate the

amounts of any deductions or credits claimed.      Sec. 6001;

INDOPCO, Inc. v. Commissioner, 503 U.S. 79, 84 (1992);

sec. 1.6001-1(a), Income Tax Regs.      As a general rule, the

Commissioner’s determination of a taxpayer’s liability in the

notice of deficiency is presumed correct, and the taxpayer bears

the burden of proving that the determination is improper.        See

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

Although section 7491(a) may shift the burden of proof to the

Commissioner in specified circumstances, petitioner has not

established that he meets the requirements under section

7491(a)(1) and (2) for such a shift.

II.    Dependency Exemption Deductions

       Section 151(a) and (c) allows a taxpayer to claim an

exemption deduction for each of the taxpayer’s dependents as
                               - 4 -

defined in section 152.   Section 152(a)(1) and (c) defines

“dependent”, in pertinent part, as a “qualifying child”, which

includes a son or daughter of the taxpayer who has not provided

over one-half of his or her own support.   “[S]upport” is defined

as including “food, shelter, clothing, medical and dental care,

education, and the like.”   Sec. 1.152-1(a)(2)(i), Income Tax

Regs.

     In the case of a child of divorced parents, if the child

receives over half of its support from its parents who are

divorced under a decree of divorce, and the child is in the

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

the taxable year, then the child will be treated as the

qualifying child of the parent having custody for the greater

portion of the calendar year (the custodial parent).

Sec. 152(e)(1).

     The noncustodial parent is nevertheless entitled to claim

the dependency exemption deduction for a given tax year if, and

only if, one of three exceptions in section 152(e) applies.     One

of the exceptions is if “the custodial parent signs a written

declaration” that the custodial parent will not claim the child

as a dependent for that tax year.   Sec. 152(e)(2)(A).   The

noncustodial parent must also attach the written declaration to

his or her Federal income tax return for that tax year.    Sec.

152(e)(2)(B); see Presley v. Commissioner, T.C. Memo. 1996-553.
                               - 5 -

     The written declaration required under section 152(e)(2)

must be made either on a completed Form 8332, Release of Claim to

Exemption for Child of Divorced or Separated Parents, or on a

statement conforming to the substance of Form 8332.    Miller v.

Commissioner, 114 T.C. 184, 189 (2000); see sec. 1.152-4T(a),

Q&A-3, Temporary Income Tax Regs., 49 Fed. Reg. 34459 (Aug. 31,

1984).

     We conclude that petitioner is not entitled to a dependency

exemption deduction for ALS for his 2006 tax year.    First,

petitioner has not proved that he was the custodial parent of ALS

in 2006.   He did not provide any evidence, or even argue, that he

was the custodial parent.   Moreover, the Order In Suit To Modify

Parent-Child Relationship indicates that for at least part of

2006 ALS resided with her mother in Arizona rather than with her

father in Texas.   Second, petitioner did not satisfy the

exception provided in section 152(e)(2) because he did not attach

a Form 8332 or other equivalent written declaration to his 2006

Form 1040 in accordance with that provision.2   Therefore,


     2
      We acknowledge that the Sept. 13, 2006, Order In Suit To
Modify Parent-Child Relationship granted petitioner the right to
claim a dependency exemption deduction for ALS for 2006.
However, a State court cannot determine issues of Federal law.
See Miller v. Commissioner, 114 T.C. 184, 196 (2000). To
properly claim the dependency exemption deduction, petitioner
needed to satisfy the requirements of sec. 152, which he could
have done by attaching a signed Form 8332 to his 2006 Form 1040.
If his former spouse refused to sign and provide the required
Form 8332 in time for him to file his 2006 Federal income tax
                                                   (continued...)
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petitioner is not entitled to claim a dependency exemption

deduction for ALS for 2006 because ALS was not his qualifying

child as that term is defined in section 152(c).

III.       Child Tax Credit

       Section 24(a) authorizes a child tax credit with respect to

each “qualifying child” of the taxpayer.         A “qualifying child”

means an individual who meets the requirements of section 152(c)

and who has not attained the age of 17.         Sec. 24(c)(1).   Because

we have concluded that ALS is not petitioner’s qualifying child

as defined by section 152(c) for 2006, she does not fit within

the meaning of “qualifying child” as defined by section 24(c).

Accordingly, petitioner is not entitled to a child tax credit for

ALS for 2006.

       The Court has considered all of petitioner’s contentions,

arguments, requests, and statements.         To the extent not discussed

herein, the Court concludes that they are meritless, moot, or

irrelevant.

       To reflect the foregoing,


                                           Decision will be

                                   entered for respondent.




       2
      (...continued)
return, petitioner’s recourse was to the State courts to have
them enforce the Texas State court order. This Court does not
have the jurisdictional power to do so.
