                  T.C. Summary Opinion 2010-122



                      UNITED STATES TAX COURT



          MARK ANTONY MIHALICK-JAROSAK, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 9869-09S.              Filed August 23, 2010.



     Mark Antony Mihalick-Jarosak, pro se.

     Fred E. Green, Jr., for respondent.



     MARVEL, Judge:   This case was heard pursuant to the

provisions of section 7463 of the Internal Revenue Code in effect

when the petition was filed.1   Pursuant to section 7463(b), the

decision to be entered is not reviewable by any other court, and



     1
      Subsequent section references are to the Internal Revenue
Code, as amended, in effect for the relevant period.
                                - 2 -

this opinion shall not be treated as precedent for any other

case.

     By notice of deficiency dated February 9, 2009, respondent

determined an income tax deficiency of $1,510 with respect to

petitioner’s 2007 taxable year.    The deficiency was attributable

to the disallowance of a dependency exemption deduction and a

child tax credit that petitioner had claimed with respect to his

minor son, JV,2 on his Federal income tax return for 2007.

     Petitioner filed a timely petition contesting respondent’s

determination.    The sole issue for decision is whether petitioner

was entitled to claim a dependency exemption deduction and a

child tax credit with respect to JV on his 2007 return.

                             Background

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

the time the petition was filed petitioner resided in Nevada.

     Petitioner served in the U.S. military with distinction for

many years.    On April 21, 1996, petitioner married Victoria

Jarosak (Ms. Jarosak).    JV is the minor child of the marriage.

     The marriage did not last.    In May 2002 petitioner and Ms.

Jarosak, who apparently were living in Colorado at the time,

entered into a separation agreement, which in pertinent part

provided that petitioner would pay Ms. Jarosak $555 per month as

support for JV.    The support was to be paid through the Colorado

     2
        The Court refers to minor children by their initials.
                               - 3 -

Family Support Registry.   The separation agreement also provided

as follows:

     Father shall be allowed to claim the minor child as a
     dependent and exemption for purposes of state and federal
     income taxes in the odd numbered years beginning in 2002.
     Mother shall be allowed to claim the minor child as a
     dependent and exemption for purposes of state and federal
     income taxes in the even numbered years beginning in 2002.
     Father may only claim the minor child as a dependent and
     exemption when his child support obligation is current and
     paid up-to-date. If an arrearage exists, Father will not be
     entitled to claim the minor child.

The separation agreement awarded “sole parental responsibility”

for JV to Ms. Jarosak, who was designated the “primary

residential parent”, but required Ms. Jarosak to include

petitioner “in all decisions for the child” as defined in

paragraph 15 of the agreement and established a parenting

schedule that included regular visits by JV with petitioner.    The

agreement required petitioner and Ms. Jarosak to cooperate with

each other and reflected their understanding that it was in JV’s

best interests for them to maintain a friendly and harmonious

relationship as parents.

     Shortly after petitioner and Ms. Jarosak separated and/or

divorced, Ms. Jarosak left with JV, and petitioner has not seen

or visited with JV since that time, a period of at least 7 years.

Because of this action, petitioner for some period refused to pay

child support, resulting in a child support arrearage.   At some

point petitioner began to pay child support,   and he paid child
                                 - 4 -

support during 2007.   Petitioner was still in arrears with his

child support payments in 2007.

     When petitioner filed his Federal income tax return for

2007, he claimed a dependency exemption deduction and a child tax

credit with respect to JV.   In the notice of deficiency

respondent determined that petitioner was not entitled to the

dependency exemption deduction or the child tax credit because

petitioner did not establish that he was entitled to claim them.

Petitioner filed a petition contesting respondent’s

determination.

                             Discussion

Dependency Exemption Deduction

     Section 151(c) permits a taxpayer to deduct an exemption for

each dependent as that term is defined under section 152.

Section 152 provides that a dependent must be either a qualifying

child or a qualifying relative.

     Section 152(c)(1) defines a qualifying child as a child who

bears a specified relationship3 to the taxpayer, who lived with

the taxpayer for more than one-half of the tax year at issue, and

who did not provide more than one-half of his or her own support

during the tax year.   A qualifying child must be less than 19

     3
      For purposes of sec. 152(c)(1)(A), a child satisfies the
relationship requirement if the child is a child of the taxpayer
or a descendant of such child, or a brother, sister, stepbrother,
or stepsister of the taxpayer or a descendant of any such
relative. Sec. 152(c)(2).
                               - 5 -

years old, a student who is less than 24 years old, or

permanently and totally disabled.   Sec. 152(c)(3).

     There is no dispute between the parties about whether JV

satisfies the age and relationship requirements of section 152.

During 2007 JV, who was petitioner’s biological son, was a minor.

However, respondent contends that petitioner has not satisfied

the other requirements of section 152 or otherwise shown that he

was entitled to claim the dependency exemption deduction for JV

for 2007.

     Section 152(e) sets forth a special rule for divorced

parents that supersedes the residency and support requirements of

section 152(c)(1)(B).   Section 152(e)(1) provides that

notwithstanding those requirements, if a child receives over one-

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

are divorced, legally separated, separated under a written

separation agreement, or live apart at all times during the last

6 months of the relevant calendar year, and the child is in the

custody of one or both of his parents for more than one-half of

that year, the child will be treated as being the qualifying

child of the noncustodial parent4 if the requirements of either


     4
      Sec. 152(e)(4)(B) defines “noncustodial parent” to mean the
parent who is not the custodial parent. Sec. 152(e)(4)(A)
defines “custodial parent” to mean the parent having custody for
the greater portion of the calendar year. Under the written
separation agreement, Ms. Jarosak was the custodial parent, and
petitioner was the noncustodial parent.
                              - 6 -

section 152(e)(2) or (3)5 are met.    Section 152(e)(2) permits the

noncustodial parent to claim the dependency exemption deduction

with respect to his or her child if the custodial parent signs a

written declaration that the custodial parent will not claim the

child as a dependent for that year and the noncustodial parent

attaches the written declaration to his return for the taxable

year.

     Because petitioner is a noncustodial parent whose claim to

the dependency exemption deduction for JV is predicated on a

provision in the written separation agreement, the special rule

in section 152(e)(2) controls whether petitioner is entitled to

the dependency exemption deduction.    In order for a noncustodial

parent to be entitled to a dependency exemption deduction under

section 152(e)(2), the noncustodial parent must have attached to

his or her return either a Form 8332, Release of Claim to

Exemption for Child of Divorced or Separated Parents, or a

document conforming in substance to Form 8332.    See Miller v.

Commissioner, 114 T.C. 184 (2000), affd. on another ground sub

nom. Lovejoy v. Commissioner, 293 F.3d 1208 (10th Cir. 2002).

Petitioner testified that he thought he attached a copy of the

written separation agreement to his return, but neither party

introduced a copy of the return into evidence.    We shall assume


     5
      Sec. 152(e)(3) sets forth a special rule that applies to
qualified pre-1985 instruments and is not applicable here.
                               - 7 -

for purposes of this opinion that petitioner attached a copy of

the separation agreement to his return and that the separation

agreement was the substantial equivalent of Form 8332.

     The separation agreement conferred on petitioner, who was

the noncustodial parent, only a conditional right to claim the

dependency exemption deduction for JV in odd-numbered years.      The

separation agreement provided that petitioner could exercise that

right only if he were current on his child support payments.      We

have held that a written separation agreement that gives the

noncustodial parent only a conditional right to claim the

dependency exemption deduction does not satisfy the requirements

of section 152(e).   See, e.g., Gessic v. Commissioner, T.C. Memo.

2010-88.   In addition, petitioner was behind in his child support

payments during 2007, and under the terms of the separation

agreement he was not entitled to claim the dependency exemption

deduction with respect to JV even if he did satisfy all of the

other requirements of section 152.     Consequently, we sustain

respondent’s determination disallowing the dependency exemption

deduction.6




     6
      Petitioner, who as of the date of trial was not employed
and was living out of his truck, testified that he had a child
support arrearage in 2007; and after reviewing the separation
agreement with the Court, he seemed to agree that he was not
entitled to claim the dependency exemption deduction for JV on
his 2007 return.
                               - 8 -

Child Tax Credit

     Section 24(a) authorizes a credit per child against an

individual taxpayer’s income tax with respect to each qualifying

child of the taxpayer.   The amount of the credit is adjusted on

the basis of the taxpayer’s modified adjusted gross income, as

that term is defined in section 24(b)(1), and is phased out

completely when the taxpayer’s modified adjusted gross income

exceeds by a certain amount the applicable threshold amount, as

defined by section 24(b)(2).

     Section 24(c)(1) defines the term “qualifying child” to mean

a qualifying child of the taxpayer as defined by section 152(c)

who has not attained the age of 17.     Because JV was not a

qualifying child of petitioner under section 152(c) during 2007,

he was not a qualifying child of petitioner under section 24.     We

sustain respondent’s determination disallowing petitioner’s

claimed child tax credit.

     To reflect our disposition of the disputed issues,


                                            Decision will be entered

                                       for respondent.
