                  T.C. Summary Opinion 2006-123



                     UNITED STATES TAX COURT



        TOMMIE AND FELECIA VERNELL WILDER, Petitioners v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 14794-05S.           Filed August 1, 2006.


     Tommie and Felecia Vernell Wilder, pro sese.

     Rebecca M. Clark, 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 deficiency of $2,914 in petitioners’

2002 Federal income tax.    After a concession by respondent,1 the

issues for decision are:    (1) Whether petitioners are entitled to

dependency exemption deductions for petitioner husband’s son and

daughter, and (2) whether respondent is estopped from disallowing

the claimed dependency exemption deductions.

                             Background

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

Petitioners are married and resided in Westland, Michigan, at the

time their petition was filed.    Unless otherwise indicated, all

references to petitioner are to Tommie Wilder.

     Petitioner and Sharon Williams have two children, their son

BW and daughter TW (collectively, “the children”).2    Petitioner

and Ms. Williams were never married and did not live together in

2002.    The children lived with Ms. Williams during that year,

although petitioner provided most of the children’s support.

     Petitioners claimed the children as dependents on their

joint 2002 Federal income tax return.     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. Williams.


     1
       Petitioners claimed dependency exemption deductions for
four children. Respondent concedes petitioners are entitled to
such deductions for two of the children.
     2
       Petitioner’s son is a minor. Although the record is not
entirely clear, it appears petitioner’s daughter may also be a
minor. We therefore use only the children’s initials.
                                - 3 -

In the notice of deficiency, respondent disallowed the claimed

dependency exemption deductions.

                             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 the Commissioner under certain circumstances.    We

decide this case without regard to the burden of proof.

Accordingly, we need not decide whether section 7491(a) applies

in this case.

Issue 1.    Dependency Exemption Deductions

     A taxpayer may be entitled to claim as a deduction an

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

child of the taxpayer is considered a dependent if the child has

not attained the age of 19 at the close of the year and more than

half the child’s support for the year was received from the

taxpayer.    Secs. 151(c)(1)(B), 152(a)(1).

     In the case of a child of parents who have lived apart at

all times during the last 6 months of the calendar year, the

support test is set forth in section 152(e).   See sec.

152(e)(1)(A)(iii).    If the child is in the custody of one or both

of his parents for more than half of the calendar year and
                                 - 4 -

receives more than half of his support during that year from his

parents, such child shall be treated 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).

     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.
                                - 5 -

The support test set forth in section 152(e) applies even if the

child’s parents have never been married.   King v. Commissioner,

121 T.C. 245, 248-252 (2003).

     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

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.”3    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, T.C. Memo. 2003-310.

     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



     3
       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).
                                 - 6 -

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.

     Petitioner and Ms. Williams lived apart during the last 6

months of 2002.    We therefore apply the support test found in

section 152(e).    See sec. 152(e)(1)(A)(iii).   Petitioner

testified that the children lived with Ms. Williams during the

year in issue.    Accordingly, Ms. Williams was the custodial

parent, and 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.

Williams.    Petitioners did not attach such a declaration or Form

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

deduct dependency exemptions for BW and TW in 2002.

Issue 2.    Estoppel

     Petitioner contends that sometime in the mid-1990s, he spoke

to an Internal Revenue Service (IRS) employee about claiming BW

and TW as dependents.    According to petitioner, the IRS employee

indicated that the children qualified as petitioners’ dependents

for Federal income tax purposes.    Petitioner asserts that for the
                               - 7 -

taxable years 1996 through 2001, petitioners claimed--and

respondent did not disallow--a dependency exemption deduction for

each child.   Petitioner argues, on the basis of his alleged

conversation with the IRS employee, that respondent is estopped

from disallowing the claimed deductions.

     Equitable estoppel is a judicial doctrine that precludes a

party from denying his own acts or representations which induced

another to act to his detriment.   Hofstetter v. Commissioner, 98

T.C. 695, 700 (1992).   It is well settled, however, that the

Commissioner cannot be estopped from correcting a mistake of law,

even where a taxpayer may have relied to his detriment on that

mistake.   Norfolk S. Corp. v. Commissioner, 104 T.C. 13, 59-60

(1995), affd. 140 F.3d 240 (4th Cir. 1998).   An exception exists

only in the rare case where a taxpayer can prove he or she would

suffer an unconscionable injury because of that reliance.      Id.

     The following conditions must be satisfied before equitable

estoppel will be applied against the Government:   (1) A false

representation or wrongful, misleading silence by the party

against whom the opposing party seeks to invoke the doctrine; (2)

an error in a statement of fact and not in an opinion or

statement of law; (3) ignorance of the true facts; (4) reasonable

reliance on the acts or statements of the one against whom

estoppel is claimed; and (5) adverse effects of the acts or

statements of the one against whom estoppel is claimed.     Id.
                                 - 8 -

     Even if we assume an IRS employee made the statement that

petitioner described, respondent is not bound by that

representation.   Petitioners have not shown that they would

suffer unconscionable injury as a result of relying on the

alleged statement.   In fact, it appears that from 1996 through

2001, petitioners may have received the benefit of deductions to

which they were not entitled.    Furthermore, the IRS employee’s

error, if any, was in a statement of law.       Accordingly,

respondent is not estopped from disallowing the claimed

dependency exemption deductions.    Respondent’s determination is

sustained.

     Reviewed and adopted as the report of the Small Tax Case

Division.

     To reflect the foregoing,


                                         Decision will be entered under

                                 Rule 155.
