                     T.C. Summary Opinion 2009-82



                        UNITED STATES TAX COURT



          BARBARA K. AND ISHMIAL D. SWAFFORD, Petitioners v.
             COMMISSIONER OF INTERNAL REVENUE, Respondent



        Docket No. 6946-08S.              Filed May 27, 2009.



        Barbara K. Swafford and Ishmial D. Swafford, pro sese.

        Nancy P. Klingshirn, for respondent.



     DEAN, Special Trial Judge:     This case was heard pursuant to

the provisions of section 7463 of the Internal Revenue Code in

effect when the petition was filed.     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

case.     Unless otherwise indicated, subsequent section references

are to the Internal Revenue Code in effect for the year in issue,
                                 - 2 -

and all Rule references are to the Tax Court Rules of Practice

and Procedure.

     Respondent determined a $1,825 deficiency in petitioners’

2006 Federal income tax.   The issues for decision are whether

petitioners are entitled to a dependency exemption deduction and

a child tax credit for D.V.1

                              Background

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

The stipulation of facts and the exhibits received into evidence

are incorporated herein by reference.      When the petition was

filed, petitioners resided in Ohio.

     Ishmial D. Swafford (Mr. Swafford) fathered a child with

Laura A. Vogel (Ms. Vogel).    An agreed entry was filed with an

Ohio State court, requiring Mr. Swafford to make certain child

support payments.   The agreed entry also provides that Mr.

Swafford is entitled to claim D.V. as a dependent for Federal and

State tax purposes in “even numbered years” if his child support

payments are “current in full”; and if not, then Ms. Vogel is

entitled to claim D.V.   It sets forth Ms. Vogel’s and Mr.

Swafford’s names and Social Security numbers.      But Ms. Vogel did

not sign the agreed entry.     Rather, it was signed by Michael P.

Kelly, “Attorney for [Mr. Swafford]”; Gayle Walker, Attorney for


     1
      The Court refers to minor children by their initials. See
Rule 27(a)(3). The evidence indicates that D.V. was 14 years old
in 2006.
                                - 3 -

State of Ohio; John C. Korfhagen, Referee; and Stephanie Wyler,

Judge.

      Mr. Swafford’s child support payments were “current in full”

in 2006.   Petitioners, therefore, claimed a dependency exemption

deduction and a child tax credit for D.V. on their 2006 Form

1040, U.S. Individual Income Tax Return.    Respondent, however,

sent petitioners a notice of deficiency in which he disallowed

the dependency exemption deduction and the child tax credit.

Petitioners did not attach to their 2006 Form 1040 either Form

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

Separated Parents, or the agreed entry.    Instead, petitioners

provided respondent with a copy of the agreed entry in response

to the notice of deficiency.

                            Discussion

I.   Burden of Proof

      The Commissioner’s determinations in a notice of deficiency

are presumed correct, and the burden of proof is on the taxpayer

to prove that the determinations are in error.    Rule 142(a);

Welch v. Helvering, 290 U.S. 111, 115 (1933).    But the burden of

proof on factual issues that affect a taxpayer’s tax liability

may be shifted to the Commissioner where the taxpayer introduces

credible evidence with respect to the issue and the taxpayer has

satisfied certain conditions.   Sec. 7491(a).   There is no dispute
                                - 4 -

as to any factual issue; accordingly, the case is decided by the

application of law to the undisputed facts.

II.   Dependency Exemption Deduction

      Taxpayers may claim dependency exemption deductions for

their dependents (as defined in section 152).    Sec. 151(c).     The

term “dependent” means a qualifying child2 or qualifying

relative.3   Sec. 152(a).   But section 152(e)(1), in pertinent

part, provides a general rule that limits the dependency

exemption deduction as follows:    if the child received over one-

half of his support during the calendar year from his parents who

live apart at all times during the last 6 months of the calendar

year and the child is in the custody of one or both parents for

more than one-half of the calendar year, then the child is

treated as the qualifying child or qualifying relative of the




      2
      A qualifying child is defined as an individual who:
(1) Bears a certain relationship to the taxpayer, such as the
taxpayer’s child; (2) has the same principal place of abode as
the taxpayer for more than one-half of the taxable year;
(3) meets certain age requirements; and (4) has not provided over
one-half of the individual’s own support for the taxable year.
Sec. 152(c)(1)-(3).
      3
      A qualifying relative is defined as an individual: (1)      Who
bears a certain relationship to the taxpayer, such as the
taxpayer’s child; (2) whose gross income for the taxable year     is
less than the exemption amount ($3,300 for 2006); (3) with
respect to whom the taxpayer provides over one-half of the
individual’s support for the taxable year; and (4) who is not     a
qualifying child of the taxpayer or of any other taxpayer for     the
taxable year. Sec. 152(d)(1) and (2).
                               - 5 -

noncustodial parent if certain requirements are met.4    The

requirements are met if:   (1) The custodial parent signs a

written declaration (in such manner and form as the Secretary may

prescribe) that the custodial parent will not claim the child as

a dependent for the taxable year; and (2) the noncustodial parent

attaches the written declaration to the noncustodial parent’s

return for the taxable year.   Sec. 152(e)(2); sec. 1.152-4T(a),

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

1984).

     The written declaration may be made on a form provided by

the Internal Revenue Service or a document that conforms to its

substance.   Miller v. Commissioner, 114 T.C. 184, 190-191 (2000)

(citing section 1.152-4T(a), Q&A-3, Temporary Income Tax Regs.,

supra).   The written declaration is embodied in Form 8332, and it

incorporates the requirements of section 152(e)(2).     Id. at 190.5

     In Miller v. Commissioner, supra at 191-195, the Court

stated that in order for the noncustodial parent to claim the

dependency exemption deduction, section 152(e)(2) clearly


     4
      Sec. 152(e) applies to both married parents and parents who
have never been married to one another. King v. Commissioner,
121 T.C. 245, 251 (2003).
     5
      Form 8332 requires a taxpayer to furnish: (1) The
children’s names and the years for which exemption claims are
released; (2) the custodial parent’s signature and the date
thereof; (3) the custodial parent’s Social Security number; and
(4) the noncustodial parent’s name and Social Security number.
Miller v. Commissioner, 114 T.C. 184, 190 (2000).
                                   - 6 -

requires the custodial parent’s release of the dependency

exemption deduction by the signing of a written declaration to

that effect.     Simply attaching a State court order that was not

signed by the custodial parent to the noncustodial parent’s

return does not satisfy the express requirements of section

152(e)(2).     Id. at 196.    The mere fact that the State court

granted the taxpayer the right to claim the dependency exemption

deduction is immaterial because a State court cannot determine

issues of Federal tax law.       Id.

     The parties agree that Mr. Swafford is D.V.’s noncustodial

parent.   Petitioners’ entitlement to the dependency exemption

deduction for D.V. therefore turns on whether they have complied

with the requirements of section 152(e)(2), notwithstanding that

the agreed entry provides that Mr. Swafford may claim D.V. as a

dependent in “even numbered years” if his child support payments

are “current in full”.       See id. at 196.

     The agreed entry does not conform to the substance of Form

8332 because it does not contain the signature of Ms. Vogel or

the date thereof.    See id. at 190; see also supra pp. 2-3 and

note 5.   In addition, neither the agreed entry nor a Form 8332

was attached to petitioners’ 2006 Form 1040.      See sec.

152(e)(2)(B); Miller v. Commissioner, supra at 190.       In sum,

petitioners have not complied with the requirements of section

152(e)(2) and therefore are not entitled to a dependency
                                   - 7 -

exemption deduction for D.V.    Respondent’s determination is

sustained.

III.    Child Tax Credit

       Taxpayers may claim a child tax credit for each qualifying

child as defined in section 152(c) who is under age 17 and for

whom the taxpayer may claim a dependency exemption deduction

under section 151.    Sec. 24(a), (c)(1).

       Because petitioners are not entitled to the dependency

exemption deduction for D.V., they cannot claim a child tax

credit for her.    See id.   Respondent’s determination is

sustained.

       To reflect the foregoing,


                                             Decision will be entered

                                        for respondent.
