                   T.C. Summary Opinion 2003-9



                     UNITED STATES TAX COURT



              WILLIAM ALLEN GILBERT, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 239-01S.                Filed February 6, 2003.



     William Allen Gilbert, pro se.

     Robert A. Varra, for respondent.



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

the provisions of section 7463 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.     Unless otherwise indicated,

subsequent section references are to the Internal Revenue Code in

effect for the year in issue.
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     Respondent determined a deficiency in petitioner’s Federal

income tax of $2,740 for the taxable year 1998.

     The issues for decision are:   (1) Whether petitioner is

entitled to a dependency exemption deduction for his daughter;

(2) whether petitioner is entitled to head of household filing

status; and (3) whether petitioner is entitled to an earned

income credit.

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

The stipulations of fact and the attached exhibits are

incorporated herein by this reference.   Petitioner resided in

Colorado on the date the petition was filed in this case.

     Petitioner and his former wife, Denise Lillian Gilbert, were

divorced in 1997.   Petitioner’s former wife was granted sole

legal custody of their minor daughter, Alexis.    The final orders

issued by the District Court, Routt County, Colorado, provided in

relevant part:

          Because Husband [petitioner] is providing 100% of the
     financial support for Alexis, I am awarding Husband the
     entire dependency exemption for Alexis for 1997 and all
     future years. Husband shall be entitled to claim this
     exemption, however, only if he is current in paying all
     child support for the tax year for which the exemption is
     claimed and if claiming the exemptions provides him with a
     tax benefit. If either condition is not satisfied, Wife may
     claim an exemption for Alexis for that tax year.

During 1998, petitioner lived in Colorado while Alexis lived with

petitioner’s former wife in Louisiana.   Petitioner visited the

Louisiana residence for approximately 3 months during 1998, but
                               - 3 -

Alexis never resided in Colorado during that year.    Petitioner

earned $10,078 in wage income during 1998.

     Petitioner filed a Federal income tax return for taxable

year 1998.   On this return, he claimed a dependency exemption

deduction for Alexis, he claimed head of household filing status,

and he claimed an earned income credit with Alexis as a

qualifying child.   Petitioner’s return stated that Alexis lived

with petitioner for 12 months during 1998.   In the statutory

notice of deficiency, respondent disallowed the dependency

exemption deduction, changed petitioner’s filing status to

single, and disallowed in full the earned income credit.

     The first issue for decision is whether petitioner is

entitled to a dependency exemption deduction for his daughter.     A

deduction generally is allowed under section 151(a) for each

dependent of a taxpayer.   Sec. 151(a), (c)(1).   Subject to

exceptions and limitations not applicable here, a child of a

taxpayer is a dependent of the taxpayer only if the taxpayer

provides over half of the child’s support for the taxable year.

Sec. 152(a).   A special rule applies to taxpayer-parents who are

divorced, who are separated, or who live apart from their spouses

for at least the last 6 months of the calendar year, but who have

custody of the child for more than half of the year.    Sec.

152(e)(1).   Under this rule, the parent with custody of the child

for the greater portion of the year (the “custodial parent”)
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generally is treated as having provided over half of the child’s

support, regardless of which parent actually provided the

support.    Id.   One exception to this special rule exists which

entitles the noncustodial parent to the dependency exemption

deduction.    Sec. 152(e)(2).   For the exception to apply, the

custodial parent must sign a written declaration releasing his or

her claim to the deduction, and the noncustodial parent must

attach the declaration to his or her tax return.     Id.    Language

in a divorce decree purportedly giving a taxpayer the right to an

exemption deduction does not entitle the taxpayer to the

deduction in the absence of the signed, written declaration

required by the statute.     Miller v. Commissioner, 114 T.C. 184

(2000), affd. sub nom. Lovejoy v. Commissioner, 293 F. 3d 1208

(10th Cir. 2002).

     Petitioner admits that he is the noncustodial parent in this

case.   Because petitioner did not attach to his return a written

declaration signed by his former wife, he is not entitled to the

dependency exemption deduction.     Secs. 151 and 152.     We note

that we do not question petitioner’s support of Alexis; whether

or not he supported her, the declaration must be attached to the

return.    Id.

     Petitioner nevertheless argues that he is entitled to the

deduction pursuant to the filing instructions issued by the

Internal Revenue Service.    Petitioner points to a flowchart on
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what is apparently page 28 of the 1998 version of IRS Publication

17, Your Federal Income Tax.1   This chart states in relevant part

that a noncustodial parent passes the support test if “there is a

decree or agreement executed after 1984 that unconditionally

entitles the noncustodial parent to the exemption” (emphasis

added).   On the following page of this publication, the listed

requirements pertaining to a noncustodial parent explicitly state

that such a post-1984 decree or agreement must state that “the

noncustodial parent can claim the child as a dependent without

regard to any condition, such as payment of support.”   The

publication further states that, in order to use such a decree or

agreement in claiming an exemption deduction, the taxpayer must

attach to his or her return a copy of certain pages of the decree

or agreement which contains the signature of the taxpayer’s

former spouse.   Petitioner did not attach to his return a copy of

the relevant portions of his divorce decree.   Furthermore,

attaching the decree to the return would not have been sufficient

because the decree by its terms did not unconditionally entitle

petitioner to the exemption deduction:   The decree provided that

entitlement to the deduction was contingent upon petitioner’s

prompt payment of child support.2


     1
      A copy of the flowchart is in evidence. The Court takes
judicial notice of the publication in its entirety.
     2
      We note that--even if the instructions upon which
                                                   (continued...)
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     The second issue for decision is whether petitioner is

entitled to head of household filing status.     For a taxpayer to

be entitled to head of household filing status for a given

taxable year, the taxpayer must at a minimum maintain “as his

home a household which constitutes for more than one-half of such

taxable year the principal place of abode” of a minor child or

other qualifying dependent.     Sec. 2(b)(1).   Alexis was the only

dependent claimed by petitioner.     Because Alexis never resided

with petitioner in his home during 1998, petitioner is not

entitled to head of household filing status.      Id.

     The third issue for decision is whether petitioner is

entitled to an earned income credit.     Under section 32, an

eligible individual is allowed a credit which is calculated as a

percentage of the individual’s earned income, subject to certain

limitations.   Sec. 32(a)(1).   Any individual with a qualifying

child is an eligible individual.    Sec. 32(c)(1)(A)(i).   An

individual with qualifying children is entitled to a larger

credit than is an individual without qualifying children.       Sec.

32(a) and (b).   Subject to further requirements, the definition

of a qualifying child for purposes of section 32 includes a child



     2
      (...continued)
petitioner relied were incorrect or misleading--the Commissioner
is not bound by guidance he provides to assist taxpayers in
filing tax returns where such guidance is contrary to the law.
Dixon v. United States, 381 U.S. 68 (1965); Automobile Club v.
Commissioner, 353 U.S. 180 (1957).
                                 - 7 -

of a taxpayer who has the same principal place of abode as the

taxpayer for more than half of the taxable year.       Sec.

32(c)(3)(A)(ii).   Petitioner claimed Alexis as a qualifying

child.   Alexis was not a qualifying child for petitioner,

however, because she did not have the same principal place of

abode as petitioner for more than half of 1998.       Petitioner is

not entitled to an earned income credit in 1998 because he had no

qualifying children and because his earned income was too great

to otherwise be entitled to the credit.       Sec. 32(a),

(c)(3)(A)(ii).

     Reviewed and adopted as the report of the Small Tax Case

Division.

     To reflect the foregoing,

                                         Decision will be entered

                                 for respondent.
