                                T.C. Memo. 2012-356


                         UNITED STATES TAX COURT



                    JORGE MARTINEZ, Petitioner v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent



      Docket No. 11984-11.                          Filed December 20, 2012.



      Jorge Martinez, pro se.

      Timothy R. Berry, for respondent.



            MEMORANDUM FINDINGS OF FACT AND OPINION


      COHEN, Judge: Respondent determined a $3,575 deficiency in petitioner’s

Federal income tax for 2008 and a $55.95 addition to tax under section 6651(a)(1).

Respondent has now conceded the addition to tax. The issue for decision is

whether petitioner is entitled to dependency exemption deductions and a child tax
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[*2] credit for two of his sons who resided with his former wife during 2008.

Unless otherwise indicated, all 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.

                                FINDINGS OF FACT

       Petitioner resided in California when he filed his petition. On or about May

1, 2007, petitioner was divorced from Sylvia R. Martinez (his former spouse). The

marital settlement agreement signed by petitioner and by his former spouse provided

in relevant part that they would have joint legal custody with shared physical

custody of their three sons, born in 1991, 1995, and 1998. The agreement provided

in part:

              To the extent allowable under the law, Husband shall have the
       right to claim any federal and state dependency exemptions and credits
       for “[names of three minor sons omitted in accordance with Rule
       27(a)(3)]” for each tax year, commencing with 2006; in any year in
       which Wife qualifies for the dependency exemptions, she shall release
       said exemptions to Husband. Wife will sign and deliver to Husband,
       before the end of each tax year, IRS Form 8332 or any other form that
       may be required for him to claim such exemptions and credits. Should
       Wife fail to sign or deliver any form required, or attempt to claim any
       exemption or credit allocated to Husband under this provision, she
       shall indemnify Husband for any additional tax liability, attorneys’ fees,
       and related costs. For purposes of duration and modification, this
       provision shall be deemed part of the child support orders.
                                            -3-

[*3] During 2008, petitioner’s two younger sons resided with his former spouse,

and the oldest son resided with petitioner. Petitioner’s oldest son attained the age of

17 in 2008.

      On April 14, 2009, petitioner attempted to file his 2008 Federal income tax

return, on which he claimed dependency exemption deductions for his three sons

and a child tax credit of $1,700 for the two younger sons. The electronic return was

rejected, apparently because his former spouse had previously filed a return

claiming one of the sons as a dependent. On April 21, 2009, petitioner mailed a

paper return that was received by the Internal Revenue Service on April 23, 2009.

No Form 8332, Release of Claim to Exemption for Child of Divorced or Separated

Parents, or other relevant statement was attached to either the electronic version or

the paper version of petitioner’s return.

                                        OPINION

      The Internal Revenue Code allows as a deduction in computing taxable

income an exemption for each dependent of a taxpayer. Sec. 151(c). A child of a

taxpayer generally qualifies as a dependent if the child shares the same principal

place of abode as the taxpayer for more than one-half of the tax year in issue. Sec.

152(a), (c). However, section 152(e)(1) limits the dependency exemption deduction

where the child’s parents live apart.
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[*4] In the case of divorced or separated parents, special rules determine which

parent may claim a dependency exemption deduction for a child. See sec. 152(e).

As relevant to the present case, section 152(e)(2) allows the noncustodial parent to

claim a dependency exemption deduction for a child if the custodial parent signs a

written declaration releasing her claim to the exemption and the noncustodial parent

attaches the declaration to his Federal income tax return.

      The declaration required by section 152(e)(2) must be made either on Form

8332 or in a statement conforming to the substance of that form. See Miller v.

Commissioner, 114 T.C. 184, 190-191 (2000), aff’d on another ground sub nom.

Lovejoy v. Commissioner, 293 F.3d 1208 (10th Cir. 2002). Form 8332 requires a

taxpayer to furnish: (1) the name of each child; (2) the name and Social Security

number of the noncustodial parent claiming the dependency exemption; (3) the

Social Security number of the custodial parent; (4) the signature of the custodial

parent; (5) the date of the custodial parent’s signature; and (6) the year or years for

which the claims were released. See id., 114 T.C. at 190. “The exemption may be

released for a single year, for a number of specified years (for example, alternate

years), or for all future years, as specified in the declaration.” Sec. 1.152-4T(a),

Q&A-4, Temporary Income Tax Regs., 49 Fed. Reg. 34459 (Aug. 31, 1984).

Petitioner did not attach the required form or a conforming statement to his 2008
                                          -5-

[*5] Federal income tax return. Petitioner is therefore not entitled to the

dependency exemption deduction under section 152(e)(2). See, e.g., Espinoza v.

Commissioner, T.C. Memo. 2011-108; Himes v. Commissioner, T.C. Memo. 2010-

97; Gessic v. Commissioner, T.C. Memo. 2010-88; Thomas v. Commissioner, T.C.

Memo. 2010-11; Walker v. Commissioner, T.C. Memo. 2008-194.

        Section 24(a) authorizes a child tax credit with respect to each qualifying

child of the taxpayer. The term “qualifying child”, for purposes of the child tax

credit, means a qualifying child as defined in section 152(c) who has not attained

age 17. Sec. 24(c)(1). Because petitioner did not establish that his sons qualified as

dependents under section 152(c) or the exception in section 152(e)(2), he does not

satisfy the “qualifying child” requirement for the child tax credit under section 24.

Thus, he is not entitled to the child tax credit claimed with respect to his younger

sons.

        To reflect the foregoing,


                                                   Decision will be entered for

                                            respondent for the deficiency and

                                            for petitioner for the addition to tax.
