                    121 T.C. No. 12



                UNITED STATES TAX COURT



 JEFFREY R. KING AND SABRINA M. KING, Petitioners v.
     COMMISSIONER OF INTERNAL REVENUE, Respondent

   JIMMY R. LOPEZ AND SUZY O. LOPEZ, Petitioners v.
     COMMISSIONER OF INTERNAL REVENUE, Respondent



Docket Nos. 16596-02, 16868-02.   Filed September 26, 2003.


     L and K are the biological parents of M, who was
born in 1986. L and K have never been married to each
other. In 1988, K executed a Form 8332, Release of
Claim to Exemption for Child of Divorced or Separated
Parents, in favor of L for the taxable year 1987 and
all years thereafter. L claimed dependency exemption
deductions for M for the tax years 1987 through 1999
and attached the Form 8332 to his returns for those
years. Beginning with the taxable year 1993, K has
claimed a dependency exemption deduction for M on her
tax returns. R issued notices of deficiency to L and K
disallowing the deductions for 1998 and 1999. L and K
lived apart at all times during the years in issue. M
lived with K at all times during the years in issue.
                                - 2 -

          Held: A dependency exemption deduction is allowed
     for a parent who provides over half of a child’s
     support during the taxable year. In the case of
     parents who are divorced, who are separated under a
     written separation agreement, or who live apart at all
     times during the last 6 months of the calendar year,
     the parent having custody for a greater portion of the
     year is treated as providing over half of the child’s
     support. Sec. 152(e)(1), I.R.C. This parent is
     entitled to the deduction unless he or she signs a
     written declaration that he or she will not claim the
     child as a dependent. Sec. 152(e)(2), I.R.C. The
     declaration may apply to 1 year, a set number of years,
     or all future years. Because L and K lived apart at
     all times during the last 6 months of 1998 and 1999 and
     K executed the Form 8332 releasing her claim to
     exemptions for the years in issue, L is entitled to the
     deductions.



     Jeffrey R. King and Sabrina M. King, pro sese.

     Jimmy R. Lopez and Suzy O. Lopez, pro sese.

     Mary Tseng Klaasen, for respondent.


     GOEKE, Judge:    Respondent determined deficiencies in income

tax for petitioners Jeffrey R. King and Sabrina M. King (Mr. King

and Mrs. King, respectively; the Kings collectively) of $1,716

and $912 for the taxable years 1998 and 1999, respectively.    In a

separate notice of deficiency, respondent determined deficiencies

in income tax for petitioners Jimmy R. Lopez and Suzy O. Lopez

(Mr. Lopez and Mrs. Lopez, respectively; the Lopezes

collectively) of $1,156 and $912 for the taxable years 1998 and

1999, respectively.   The issue for decision is which petitioners

are entitled to dependency exemption deductions under section
                                - 3 -

1511 for the taxable years 1998 and 1999 for the biological

daughter of Mr. Lopez and Mrs. King.    We hold that the Lopezes

are entitled to the deductions because (1) the special support

test under section 152(e)(1) can apply to parents who have never

married each other, (2) Mr. Lopez and Mrs. King lived apart at

all times during the last 6 months of 1998 and 1999, and (3) Mrs.

King validly released her claim to the exemption for the years in

issue.

                          FINDINGS OF FACT

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

The stipulation of facts, supplemental stipulation of facts,

second supplemental stipulation of facts, and the attached

exhibits are incorporated herein by this reference.    The Kings

and the Lopezes resided in Colorado at the time they filed their

respective petitions.

     Mr. Lopez and Mrs. King are the biological parents of

Monique Desiree Vigil (Monique), who was born on January 17,

1986.    Mr. Lopez and Mrs. King have never been married to each

other.    Mr. Lopez and Mrs. King lived apart at all times during

1998 and 1999.




     1
      Unless otherwise indicated, all section references are to
the Internal Revenue Code in effect for the years in issue, and
all Rule references are to the Tax Court Rules of Practice and
Procedure.
                                - 4 -

     For 1987, Mr. Lopez timely filed his Federal income tax

return and claimed a dependency exemption deduction for Monique.

In a letter dated April 20, 1988, respondent requested that Mr.

Lopez complete a Form 8332, Release of Claim to Exemption for

Child of Divorced or Separated Parents.    On April 30, 1988, Mrs.

King executed a Form 8332 in favor of Mr. Lopez for the taxable

year 1987 and all years thereafter.2    Mr. Lopez claimed a

dependency exemption deduction for Monique for the taxable years

1987 through 1999.   Mr. Lopez attached a copy of the Form 8332

executed by Mrs. King to his tax returns for the years in issue.

     Beginning with the taxable year 1993, the year they were

married, the Kings began claiming a dependency exemption

deduction for Monique on each of their Federal income tax

returns.   Monique resided with the Kings at all times during the

calendar years 1998 and 1999.   The Lopezes and the Kings provided



     2
      The Form 8332 Mrs. King executed was the December 1987
version of the form. Pt. I of the form was entitled “Release of
Claim to Exemption for Current Year”. Mrs. King completed and
signed Pt. I, thereby releasing her claim to the exemption
deduction for Monique for 1987. Pt. II was entitled “Release of
Claim to Exemption for Future Years”. In the space specified
“for the tax year(s)”, the words “future years” were written.
Mrs. King signed the space in Pt. II releasing her claim to
exemption deductions. The general instructions to that version
of the Form 8332 stated that a parent who might be entitled to
claim an exemption deduction for a child could agree to release
the claim for the current calendar year or for future years, or
both. In December 2000, the Commissioner revised Form 8332 and
inserted cautionary language stating that the special support
test “does not apply to parents who never married each other.”
                               - 5 -

all of Monique’s financial support in 1998 and 1999.   On the

basis of the expenditures for Monique established by the record,

the Kings provided over half of Monique’s support during these

years.   Mr. Lopez and Mrs. King have had only sporadic and brief

contact with each other since 1987, and at no time did she inform

him that she wanted or otherwise intended to revoke the release

contained in the Form 8332 that she executed on April 30, 1988.

     On July 29, 2002, respondent issued notices of deficiency to

the Kings and the Lopezes for their taxable years 1998 and 1999.

In order to protect the Government from a potential whipsaw,

respondent determined that neither the Kings nor the Lopezes were

entitled to dependency exemption deductions under section 151.3

The Kings and the Lopezes timely filed petitions to this Court

seeking redeterminations.   Because of the common issues


     3
      Respondent also reduced the Lopezes’ child tax credit for
1998 and 1999 on the basis of the determination that the number
of their children that could be claimed as dependents was reduced
by one. Resolution of this issue depends on our decision with
respect to the issue of which petitioners are entitled to the
dependency exemption deduction for Monique.

     With respect to the Kings, respondent determined that they
were entitled to an additional child tax credit for 1998 not
claimed on their 1998 return; however, because respondent
determined that they were not entitled to an exemption deduction
for Monique, the child tax credit for 1999 was reduced by $500.
Respondent also reduced the Kings’ earned income credit for 1998
on the basis of the change in the number of allowed exemptions.
Respondent conceded this issue before trial. Resolution of the
child tax credit issue for 1999 depends on our decision with
respect to the issue of which petitioners are entitled to the
dependency exemption deductions for Monique.
                                 - 6 -

presented, the cases were consolidated for purposes of trial,

briefing, and opinion.

                                OPINION

     The issue for decision is which petitioners are entitled to

dependency exemption deductions for Monique for the years in

issue.   As explained below, we hold that the Lopezes are entitled

to the deductions because Mr. Lopez and Mrs. King lived apart at

all times during the last 6 months of 1998 and 1999 and Mrs. King

released her claim to the dependency exemption deductions for the

years in issue.

     Section 151 provides exemption deductions for qualified

dependents of a taxpayer in computing taxable income.    A child of

a taxpayer is generally a dependent of the taxpayer only if the

taxpayer provides over half of the child’s support during the

taxable year.   Sec. 152(a).   A special support test applies to

certain parents.    Section 152(e) provides:

          SEC. 152(e) Support Test in Case of Child of
     Divorced Parents, Etc.–-

               (1) Custodial parent gets exemption.–-Except
          as otherwise provided in this subsection, if--

                       (A) a child (as defined in
                  section 151(c)(3)) receives over
                  half of his support during the
                  calendar year from his parents--

                            (i) who are divorced
                       or legally separated
                       under a decree of divorce
                       or separate maintenance,
                         - 7 -

                    (ii) who are
               separated under a written
               separation agreement, or

                    (iii) who live apart
               at all times during the
               last 6 months of the
               calendar year, and

               (B) such child is in the
          custody of one or both of his
          parents for more than one-half of
          the calendar year,

such child shall be treated, for purposes of subsection
(a), as receiving over half of his support during the
calendar year from the parent having custody for a
greater portion of the calendar year (hereinafter in
this subsection referred to as the “custodial parent”).

          (2) Exception where custodial parent
     releases claim to exemption for the year.–-A
     child of parents described in paragraph (1)
     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.
                                - 8 -

If the requirements of section 152(e)(1) are met, the child is

treated as having received over half of his support from the

custodial parent, and the custodial parent is entitled to the

dependency exemption deduction.   The noncustodial parent can gain

entitlement to the deduction if the custodial parent executes a

valid written declaration under section 152(e)(2) releasing the

claim to the deduction.    The declaration may apply to 1 year, a

set number of years, or all future years.     Sec. 1.152-4T(a), Q&A-

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

1984).   A validly executed Form 8332 satisfies the written

declaration requirement.

     The Lopezes argue that they are entitled to the dependency

exemption deductions because Mr. Lopez and Mrs. King lived apart

at all times during the years in issue and Mrs. King signed a

written declaration stating that she would not claim Monique for

1987 and future years.    Respondent and the Kings contend that the

special support test of section 152(e) does not apply to parents

who have never married each other.4     If the special support test

can apply to parents who have never married each other,

respondent and the Kings, for different reasons, claim that the



     4
      Because we have found as a fact that the Kings provided
over half of Monique’s support during the years in issue, they
would be entitled to the dependency exemption deductions if sec.
152(e)(1) did not apply to parents who have never married each
other.
                                 - 9 -

Form 8332 Mrs. King executed in 1988 did not release her claim to

the exemption deductions for the years in issue.

     This case presents an issue that has not been squarely

addressed by the Court.5   Additionally, it appears that the

Commissioner has at times taken inconsistent positions on the

matter.6   Resolution of the issue requires us to interpret the

language of section 152(e)(1).

     In interpreting a statute, our purpose is to give effect to

Congress’s intent.    Ewing v. Commissioner, 118 T.C. 494, 503

(2002).    Usually, the plain meaning of the statutory language is

conclusive.    United States v. Ron Pair Enters., Inc., 489 U.S.



     5
      In Hughes v. Commissioner, T.C. Memo. 2000-143, and Brignac
v. Commissioner, T.C. Memo. 1999-387, we applied, without
discussion of this point, sec. 152(e)(1) to parents who had never
married each other. It does not appear that the Commissioner
argued in those cases that the statute did not apply.
     6
      On brief, respondent explained that his current position is
based on a Litigation Guideline Memorandum issued in 1999. Chief
Counsel Advice 1999-49-033 (Dec. 10, 1999). However, the
Commissioner previously issued a Field Service Advisory in 1997
taking the same position. Field Service Advice 1997392 (Apr. 2,
1997). The 1997 advisory stated that a copy of then-current
training materials reflected the position taken in 1990 that the
special support test did not apply to parents who have never
married each other, and that the Commissioner’s opinion had not
changed. However, in 1996 the Commissioner issued a Field
Service Advisory concluding that the special support test under
sec. 152(e)(1) could apply to parents who had never married each
other. Field Service Advice 1996442 (Apr. 22, 1996).
Additionally, the version of the Form 8332 provided by the
Commissioner from December 1987 until December 2000 did not state
that the special support test did not apply to parents who had
never married each other.
                               - 10 -

235, 242 (1989); Ewing v. Commissioner, supra at 503.     If the

statute is silent or ambiguous, then we may look to the

legislative history to determine congressional intent.

Burlington N. R.R. v. Okla. Tax Commn., 481 U.S. 454, 461 (1987);

Fernandez v. Commissioner, 114 T.C. 324, 329-330 (2000).     The

legislative history of a statute is secondary when we can apply

the plain meaning of unambiguous text; however, unequivocal

evidence of clear legislative intent may sometimes override a

plain meaning interpretation and lead to a different result.

Allen v. Commissioner, 118 T.C. 1, 17 (2002) (and cases cited

thereat); Nordtvedt v. Commissioner, 116 T.C. 165, 169 (2001),

affd. without published opinion 22 Fed. Appx. 790 (9th Cir.

2001).

     Section 152(e)(1) provides that the special support test

applies to “parents” in three different situations.   The statute

specifically provides that the test applies not only to divorced

and certain separated parents, but to parents “who live apart at

all times during the last 6 months of the calendar year”.    There

is no requirement in the statute that parents have married each

other before the special support test can apply.   Section

152(e)(1) applies to any parents, regardless of marital status,

as long as they lived apart at all times for at least the last 6

months of the calendar year.

     Respondent contends that the legislative history of section

152(e) supports the interpretation that section 152(e)(1)(A)(iii)
                              - 11 -

applies only to parents who are married but who live apart.7

Although we find the statute unambiguous, we have examined the

legislative history, and we disagree with respondent regarding

its import.

     Section 152(e) was amended in 1984 to add current paragraphs

(1)(A)(iii) and (2).   Deficit Reduction Act of 1984, Pub. L. 98-

369, sec. 423(a), 98 Stat. 799.   Before the 1984 amendment, the

special support test applied only to parents who were divorced or

separated under a written separation agreement.8   The conference

report accompanying the Deficit Reduction Act of 1984 states that

the special support test was being extended to parents living

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

H. Conf. Rept. 98-861, at 1118-1119 (1984), 1984-3 C.B. (Vol. 2)

1, 372-373.9   The reason for the change was to resolve disputes



     7
      Respondent also contends that similar “live apart” language
used in other provisions of the Internal Revenue Code indicates
that the special support test was meant to apply only to parents
who have married each other. Respondent bases his contention on
a statement in the House bill that certain provisions were being
amended to provide consistent rules among various interrelated
sections concerning family status of individuals living apart.
H. Rept. 98-432 (Part II), at 1499 (1984). We have reviewed the
provisions respondent cites, but we find that they provide
unpersuasive support for respondent’s position, especially in
light of the plain meaning of sec. 152(e)(1).
     8
      This meant that under former sec. 152(e) “only parents
previously united in marriage [came] within its ambit.” Radin v.
Commissioner, T.C. Memo. 1987-348.
     9
      The conference agreement provides a brief discussion of the
House bill and states that there was no Senate amendment. The
conference agreement followed the House bill. H. Conf. Rept. 98-
861, at 1118-1119 (1984), 1984-3 C.B. (Vol. 2) 1, 372-373.
                             - 12 -

without the involvement of the Commissioner between parents who

both claim the dependency exemption deduction based on providing

support over the applicable thresholds.   H. Rept. 98-432 (Part

II), at 1498 (1984).10

     Contrary to respondent’s assertions, the legislative history

of section 152(e) does not provide support for deviating from the

plain meaning of the statute that the special support test can

apply to parents who have never married each other.   Neither the

House bill nor the conference report state that the amendment to

section 152(e) was intended to apply only to married parents.

Indeed, applying section 152(e)(1)(A)(iii) to both married

parents and parents who have never married each other is

consistent with the stated purpose of resolving dependency

disputes without the Commissioner’s involvement in cases where

parents both claim the dependency exemption deductions.

Therefore, we hold that the special support test in section

152(e)(1) applies in this case.   This means that Mrs. King is

treated as having provided over half of Monique’s support for

1998 and 1999 and will be entitled to the dependency exemption

deductions unless, pursuant to section 152(e)(2), she released

her claim to the exemption deductions for Monique for these

years.



     10
      See also Bramante v. Commissioner, T.C. Memo. 2002-228,
citing the legislative history and stating that the pre-1985
version was often subjective and presented difficult problems of
proof and substantiation.
                               - 13 -

     Stipulation 10 of the stipulation of facts states that Mrs.

King executed a Form 8332 in favor of Mr. Lopez “for taxable year

1987 and all years thereafter.”    Despite this stipulation,

respondent claimed for the first time at trial, and subsequently

argued on brief, that the Form 8332 is ambiguous because Mrs.

King “did not specify particular future years” or write “all”

future years.11   The Kings also dispute the stipulation, claiming

that Mrs. King did not release her claim to the exemption

deductions because the Form 8332 was signed under duress and she

was not aware what the form was until the instant proceeding

began.

     Rule 91(a)(1) generally requires the parties to stipulate to

the fullest extent all matters not privileged which are relevant

to the case, regardless of whether such matters involve fact or

opinion or the application of the law to fact.    Stipulations are

binding on the parties to the stipulation, unless the parties

agree otherwise or the Court relieves a party from the binding

effect “where justice requires.”    Rule 91(e).   The parties have


     11
      The notices of deficiency do not discuss the validity of
the Form 8332 executed by Mrs. King. Additionally, respondent
did not raise this issue in either the answer or the trial
memorandum as a ground for denying the dependency exemption
deductions to the Lopezes. Indeed, in the trial memorandum,
respondent indicates that if the special support test can apply
to unmarried parents, then Mr. Lopez is entitled to the
dependency exemption deductions unless Mrs. King can establish
that she signed the Form 8332 under duress. Respondent has
consistently taken the position that the form was not signed
under duress.
                                - 14 -

not otherwise agreed to be relieved from the binding effect of

stipulation 10.     Additionally, as explained below, justice does

not require us to disregard the stipulation.

     Stipulation 10 states that the release contained in the Form

8332 was not just for 1987; it was for each and every year after

1987.     The Form 8332 itself clearly demonstrates that Mrs. King

intended to release her claim to exemptions for 1987 and all

subsequent years, and we reject respondent’s new argument that

the omission of the word “all” renders the release ineffective.12

     The Kings are also bound by the stipulation.    However, we

briefly discuss why their arguments are not grounds for finding

that the Form 8332 was invalid with respect to the years in

issue.     Mrs. King’s overall testimony at trial indicates that she

was not under duress at the time she signed the Form 8332.    Mrs.

King testified that Mr. Lopez did not threaten her on the day she

executed the Form 8332 or otherwise force her to sign the

document. Mrs. King’s allegations of abuse involve isolated

incidents not contemporaneous with her signing of the Form 8332

and do not support a finding under either Federal or State law

that there was an unlawful threat or pattern of abuse or mental



     12
      In any event, we find respondent’s argument that the Form
8332 is ineffective because it lacks the word “all” strained and
unpersuasive. The words “future years” written on the form
clearly indicate that the claim for the exemption deduction was
intended to be released not just for 1987 but for each and every
year thereafter.
                             - 15 -

intimidation that caused her to sign the form under duress.    See

Bennett v. Coors Brewing Co., 189 F.3d 1221, 1231 (10th Cir.

1999); Furnish v. Commissioner, 262 F.2d 727, 733 (9th Cir.

1958), affg. in part and remanding in part Funk v. Commissioner,

29 T.C. 279 (1957); Brown v. Commissioner, 51 T.C. 116, 119

(1968); Berger v. Commissioner, T.C. Memo. 1996-76.

Additionally, it was Mrs. King’s duty to make the appropriate

inquiries before she signed the Form 8332 permanently releasing

her claim to exemption deductions for Monique, and we will not

ignore the properly executed form because she now contends that

she did not intend to release her claim for the years in issue.

See, e.g., Rubin v. Commissioner, 103 T.C. 200, 210-211 (1994);

Bramante v. Commissioner, T.C. Memo. 2002-228.   Therefore, we

find that Mrs. King validly released her claim to the exemption

deductions for Monique for the years in issue and, as a result,

the Kings are not entitled to dependency exemption deductions

under section 151 for Monique for the years in issue.

Accordingly, the Lopezes are entitled to the deductions for the

years in issue.


                              Decision will be entered under

                         Rule 155 in docket No. 16596-02.

                              Decision will be entered for

                         petitioners in docket No. 16868-02.
