                  T.C. Summary Opinion 2002-112



                     UNITED STATES TAX COURT


                   EDWARD REISS, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent


     Docket No. 9318-01S.                Filed August 28, 2002.


     Edward Reiss, pro se.

     Marie E. Small, for respondent.


     POWELL, Special Trial Judge:    This case was heard pursuant

to the provisions of section 74631 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.

     Respondent determined a deficiency of $3,364 in petitioner’s

1998 Federal income tax.    The issues are whether petitioner is



1
   Unless otherwise indicated, subsequent section references are
to the Internal Revenue Code in effect for the year in issue.
                                - 2 -

entitled to claim a dependency exemption deduction for his

daughter for the 1998 taxable year and whether he is entitled to

use head of household filing status.       Petitioner resided in

Westport, Connecticut, at the time the petition was filed.

                              Background

     The facts are not in dispute and may be summarized as

follows.2   Pursuant to a Decree of Dissolution of Marriage

(hereinafter referred to as the “Decree”) entered by the Superior

Court of the State of Arizona, County of Yavapai, petitioner and

his former wife, Susan Lynne Reiss, were divorced on November 9,

1992.    Petitioner and his former wife had one minor child.       The

Decree provided, inter alia:

          2. The custody of the minor child, Ilana Michelle
     Reiss, is hereby awarded to the * * * [former wife], subject
     to visitation by Petitioner * * *.

          3 a. * * * Petitioner shall pay to * * * [the former
     wife], through the Child Support Clerk of this Court, the
     sum of $1,030.00 each month as and for child support * * *.

     *          *         *          *           *         *             *

          C. So long as Petitioner is current on all child
     support as of December 31 of each year, Petitioner shall be
     entitled to declare Ilana Michelle Reiss as a dependant and
     exemption for all federal and state income tax purposes;
     that * * * [the former wife] shall sign whatever documents
     are reasonably necessary to facilitate Petitioner’s
     declaration of Ilana Michelle Reiss as a dependent and
     exemption.



2
   The facts are not in dispute, and the issue is primarily one
of law. Sec. 7491, concerning burden of proof, has no bearing on
this case.
                               - 3 -

      During 1998, petitioner’s daughter did not live with him for

more than half of the taxable year, and petitioner’s former wife

had custody of the child.   Petitioner made all child support

payments as ordered by the Decree.     On his 1998 Federal income

tax return, petitioner claimed a dependency exemption deduction

for his daughter and head of household filing status.

Notwithstanding the provisions of the Decree, petitioner’s former

wife refused to sign Form 8332, Release of Claim to Exemption for

Child of Divorced or Separated Parents.

                            Discussion

1.   Dependency Exemption

      Section 151 provides that in computing taxable income an

individual is entitled to deduct an exemption for qualified

dependents as that term is defined in section 152.     Section 152

defines a “dependent” as a son, daughter, sibling, parent, or an

individual who has as a principal place of abode the home of the

taxpayer and is a member of the taxpayer’s household.

      Section 152(e) provides that in the case of divorced

parents:

      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 * * * receives over half of his
           support during the calendar year from his parents--
                              - 4 -

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

                    (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.

     The regulations provide that a noncustodial parent may claim

an 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”.   Sec.

1.152-4T(a), Q&A-3, Temporary Income Tax Regs., 49 Fed. Reg.
                               - 5 -

34451 (Aug. 31, 1984).   The declaration required must be made on

a form provided by the Internal Revenue Service (Form 8332) or on

a statement that “[conforms] to the substance of such form.”       Id.

     In Miller v. Commissioner, 114 T.C. 184 (2000), we

recognized that an alternative to Form 8332 may be used by the

noncustodial parent to substantiate his right to claim a

dependency exemption for his child.     Any alternative

     must contain substantially the same information required by
     Form 8332. In particular, the document must satisfy the
     signature requirement of section 152(e)(2). The signature
     of the custodial parent is critical to the successful
     implementation of Congress’ plan to eliminate support-based
     disputes regarding dependency exemptions and to simplify the
     rules regarding when a noncustodial parent may claim the
     dependency exemptions for his or her children. [Id. at 191-
     192.]

We rejected the argument in Miller that a court decree, even if

executed by the former spouse, satisfied the requirements of

section 152(e)(2).   In this case, petitioner is the noncustodial

parent.   The Decree required petitioner’s former wife to execute

the statement required; she, however, refused to do so.     While we

are sympathetic to petitioner’s plight, we note that petitioner’s

remedy lies with the Arizona divorce court.     It is not within

this Court to enforce that decree.     We recognize that, as

petitioner points out, enforcing the Decree may involve an

expenditure of funds, but that is a decision that petitioner must

make.   Petitioner has not chosen that route, and he is not
                                - 6 -

entitled to claim a dependency exemption deduction for his

daughter on his 1998 Federal income tax return.

2.   Filing Status

      Section 2(b)(1), provides:

           (1) In general.--For purposes of this subtitle, an
      individual shall be considered a head of a household if, and
      only if, such individual is not married at the close of his
      taxable year, is not a surviving spouse (as defined in
      subsection (a)), and either--

                   (A) maintains as his home a household which
            constitutes for more than one-half of such taxable year
            the principal place of abode, as a member of such
            household, of--

                      (i) a * * * daughter * * *.

      Since his daughter did not live with petitioner for more

than half of the taxable year, petitioner is not entitled to head

of household filing status for the taxable year 1998.

      Reviewed and adopted as the report of the Small Tax Case

Division.

                                             Decision will be entered

                                        for respondent.
