                  T.C. Summary Opinion 2004-134



                      UNITED STATES TAX COURT



                CHRISTINA WENTLAND, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 5241-01S.          Filed September 27, 2004.


     Christina Wentland, pro se.

     Lisa K. Hunter, for respondent.



     HOLMES, Judge:


                            Background

     This case was tried on March 16, 2004, in Omaha, Nebraska.1

Christina Wentland (now Christina Anderson), challenged the


     1
       It was heard pursuant to the provisions of Internal
Revenue Code section 7463. Section citations are all to that
Code. The decision is not reviewable by any other court, nor
should the opinion be cited as precedent in future proceedings.
                                - 2 -

Government’s notice of deficiency.      The notice of deficiency said

she owed $1,924 in additional taxes for 1999 because she claimed

a dependency exemption for her daughter Stephanie to which she

was not entitled.    The Government also said that Ms. Anderson

owed even more than $1,924 because she should have filed under

the category “married filing separately” rather than as “head of

household” or “single.”

     Ms. Anderson was the only witness at the trial, and the

Court found her to be sincere and truthful in testifying about

the facts in this case.    Using her testimony and the documents

that she had as evidence, the Court finds that:

      She married Steven Wentland in Council Bluffs, Iowa, on

December 28, 1985.    They have two children, Stephanie and Steven.

Ms. Anderson and Mr. Wentland were still married all through

1999, though they had separated in July 1998.     Both filed for

divorce earlier that year.    The couple did not negotiate a

written separation agreement.    Mr. Wentland was awarded temporary

custody of the children, which continued throughout 1999.      During

1999, Ms. Anderson lived at a number of different addresses,

including Eagle, Nebraska, where she had her own place; with

friends in Lincoln; and in her own place, again, in another house

in Lincoln.   During the latter half of 1999, she tried to

reconcile with her husband and moved to a trailer on the property

of her mother-in-law’s house.    During 1999, Ms. Anderson paid all
                                - 3 -

the child support she owed as directed by the Nebraska District

Court’s temporary custody order.

     The couple’s divorce only became final in 2000.    According

to the divorce decree, Ms. Anderson could claim Stephanie as a

dependent for tax purposes.    Mr. Wentland could claim Steven,

provided he was current on all child support payments.    Relying

on the terms of the divorce decree and her attorney’s advice, Ms.

Anderson claimed Stephanie as a dependent on her 1999 tax return.



                              Discussion

     The sections of the Tax Code that apply to separated and

divorced couples are complicated.    Usually the Government would

follow a divorce decree like Ms. Anderson’s and let the couple

decide between themselves who gets which child’s deductions.      But

that’s true only if (1) the parents are divorced, (2) legally

separated under a decree of divorce or separate maintenance, (3)

separated under a written separation agreement, or (4) live apart

at all times during the last 6 months of the calendar year.

     Ms. Anderson and Mr. Wentland did not meet any of these

requirements in 1999--they weren’t divorced yet, they weren’t

legally separated under a decree of divorce or separate

maintenance, they had no written separation agreement, and

(because they tried to reconcile off and on in 1999) they were

not living apart at all times during the last six months of 1999.
                                 - 4 -

What they did have was a divorce case that wasn’t finished yet,

plus an order from a State court awarding temporary custody of

both children to Mr. Wentland.    Ms. Anderson’s problem, then, is

that the advice she got was wrong, because her divorce was not

final until August 2000.   This means that the divorce decree

didn’t apply to her 1999 taxes.

     In this kind of situation, the Tax Code says that a taxpayer

like Ms. Anderson must prove she gave more than half of the

support for her daughter before she can claim her as a dependent.

See sec. 152(a).   This is very hard to do--first Ms. Anderson

would have to prove the total amount of support Stephanie

received during the year, including any food, clothing, and

shelter that Stephanie got from her grandmother as well as Mr.

Wentland.   At trial, Ms. Anderson truthfully said that in 1999

her daughter was mostly living with Mr. Wentland’s mother.    Even

though Ms. Anderson paid the child support the state court told

her to, and paid for extras too, we find that she did not show

that she paid for more than half of all her daughter’s expenses

in 1999.    Therefore, Ms. Anderson could not claim her daughter as

a dependent on her 1999 tax return.

     The Government also claims that Ms. Anderson should have

filed as “married filing separately” instead of “single” or “head

of household.”   While it may be true that Ms. Anderson should

have filed as “married filing separately” because her divorce was
                               - 5 -

not final until 2000, the Government raised the issue only right

before trial.   The Government’s lawyer quite properly decided to

withdraw the government’s motion, so the deficiency will stay at

$1,924 and not increase any more.

     The Court notes that, with the passage of time, the $1,924

deficiency will be increased by several years’ worth of interest,

and urges the government to explain to Ms. Anderson the

possibility of paying on an installment plan or, if her current

financial situation makes it appropriate, discussing with her the

possibility of compromising the total amount owed.



                                       A decision will be entered for

                               respondent.
