                  T.C. Summary Opinion 2009-148



                     UNITED STATES TAX COURT



    KEVIN H. DYER AND DENISE L. SAUNDERS DYER, Petitioners v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 10220-08S.              Filed September 24, 2009.



     Kevin H. Dyer and Denise L. Saunders Dyer, pro sese.

     Edward Lee Walter, for respondent.



     ARMEN, 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.1   Pursuant to section

7463(b), the decision to be entered is not reviewable by any



     1
        Unless otherwise indicated, all subsequent 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.
                                 - 2 -

other court, and this opinion shall not be treated as precedent

for any other case.

     Respondent determined a deficiency in petitioners’ Federal

income tax for 2006 of $4,475.    After concessions,2 the issues

remaining for decision are:

     (1) Whether petitioners are entitled to dependency exemption

deductions for petitioner Kevin H. Dyer’s (Mr. Dyer) two youngest

children.    We hold that petitioners are not; and

     (2) whether petitioners are entitled to a child tax credit

for Mr. Dyer’s youngest child.    We hold that petitioners are not.

                              Background

     Some of the facts have been stipulated, and they are so

found.   We incorporate by reference the parties’ stipulation of

facts and accompanying exhibits.

     Petitioners resided in the State of Ohio when the petition

was filed.

     Before his marriage to Denise L. Saunders Dyer (Mrs. Dyer),

Mr. Dyer was married to Jill A. Dyer, now Jill Weaver (Ms.

Weaver).    Mr. Dyer and Ms. Weaver had three children, one born in

each of the following years:    1987, 1989, and 1992.


     2
        Although a letter dated Feb. 28, 2008, from respondent to
petitioners allows two dependency exemptions, the parties
stipulated that the letter “allowed dependency exemptions for one
child of Kevin Dyer and two children of Denise Dyer” for a total
of three dependency exemptions. In addition, respondent conceded
that petitioners were allowed the child tax credit on account of
one child of Denise Dyer.
                                 - 3 -

     In 1999 Mr. Dyer and Ms. Weaver divorced and entered into a

Parties’ Proposed Shared Parenting Plan (the shared parenting

plan), which is undated but signed by Mr. Dyer, Ms. Weaver, and

their respective attorneys.   In the shared parenting plan,

primary custody of the children was given to Ms. Weaver.    The

shared parenting plan also stated that Mr. Dyer would make child

support payments to Ms. Weaver through the Montgomery County

Support Enforcement Agency.   With respect to dependency

exemptions for tax purposes, the shared parenting plan detailed

the following provision:

          30.   TAX EXEMPTION:

          The father shall have the tax exemptions for all
     three (3) children beginning tax year 1998 provided he
     is current in his child support obligation. The Court
     retains jurisdiction over this as well as all other
     matters involving the children.

     For 2006 Mr. Dyer was current in his child support

obligation.

     In addition to Mr. Dyer’s three children, Mrs. Dyer also

brought three children of her own to the marriage.   Thus, when

petitioners filed their 2006 Federal income tax return, they

claimed dependency exemption deductions for five children (Mr.

Dyer’s three children and Mrs. Dyer’s oldest and youngest

children) and the child tax credit on account of two children

(Mr. Dyer’s youngest child and Mrs. Dyer’s youngest child).
                                - 4 -

      In a notice of deficiency dated February 1, 2008, respondent

disallowed all five of the dependency exemption deductions and

the child tax credit for both children.   Respondent subsequently

conceded that petitioners were entitled to three dependency

exemption deductions on account of Mr. Dyer’s oldest child and

Mrs. Dyer’s oldest and youngest children.3   In addition,

respondent conceded that petitioners were allowed the child tax

credit for Mrs. Dyer’s youngest child.

                            Discussion

A.   Burden of Proof

      Generally, the Commissioner’s determinations are presumed

correct, and the taxpayer bears the burden of proving that those

determinations are erroneous.   Rule 142(a); Welch v. Helvering,

290 U.S. 111, 115 (1933).   Deductions and credits are a matter of

legislative grace, and the taxpayer bears the burden of proving

that he or she is entitled to any deduction or credit claimed.

Rule 142(a); Deputy v. du Pont, 308 U.S. 488, 493 (1940);

New Colonial Ice Co. v. Helvering, 292 U.S. 435, 440 (1934).

Under section 7491(a)(1), the burden of proof may shift from the

taxpayer to the Commissioner if the taxpayer produces credible

evidence with respect to any factual issue relevant to


      3
        Respondent conceded the dependency exemption deduction on
account of Mr. Dyer’s oldest child on the basis that she actually
lived with petitioners throughout the entire year and was a full-
time student. See sec. 152(c)(1), (3).
                                - 5 -

ascertaining the taxpayer’s liability.    Petitioners have not

alleged that section 7491 applies; therefore, the burden of proof

remains on petitioners.

B.   Dependency Exemption Deductions

       In general, a taxpayer may claim a dependency exemption

deduction “for each individual who is a dependent (as defined in

section 152) of the taxpayer for the taxable year.”    Sec. 151(a),

(c).    Section 152(a) defines a dependent to include a “qualifying

child”.    A qualifying child must, inter alia, share the same

principal place of abode as the taxpayer for more than one-half

of the year in issue.    Sec. 152(c).   Because the shared parenting

plan awarded primary custody to Ms. Weaver, and Mr. Dyer admitted

that he was the noncustodial parent for his two youngest

children, we find that Ms. Weaver was the custodial parent of Mr.

Dyer’s two youngest children for 2006.

       In the case of divorced or separated parents, however,

special rules determine which parent may claim a dependency

exemption deduction for a dependent.    See sec. 152(e).   As

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

noncustodial parent to claim the dependency exemption deduction

for a child if the custodial parent signs a written declaration

releasing his or her claim to the deduction and the noncustodial

parent attaches the declaration to his or her tax return.
                                 - 6 -

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

on either Form 8332, Release of Claim to Exemption for Child of

Divorced or Separated Parents, or on a statement conforming to

the substance of that form.   Miller v. Commissioner, 114 T.C.

184, 189 (2000), affd. on another ground sub nom. Lovejoy v.

Commissioner, 293 F.3d 1208 (10th Cir. 2002); see sec. 1.152-

4T(a), Q&A-3, Temporary Income Tax Regs., 49 Fed. Reg. 34459

(Aug. 31, 1984).   Form 8332 requires a taxpayer to furnish:    (1)

The name of the child or children; (2) the name and Social

Security number of the noncustodial parent claiming the

dependency exemption deductions; (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 Miller

v. Commissioner, supra 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).

     In the instant case, Mr. Dyer admits that he was the

noncustodial parent for his two youngest children during 2006.

It follows, therefore, that petitioners may be entitled to the

dependency exemption deduction if they attached to their 2006 tax

return a written declaration as required under section 152(e)(2).
                                - 7 -

Petitioners contend that the shared parenting plan submitted to

respondent after the filing of the 2006 tax return constitutes

such a written declaration.    Accordingly, we must decide whether

the shared parenting plan constitutes a written declaration under

section 152(e)(2).4

     In Boltinghouse v. Commissioner, T.C. Memo. 2003-134, the

taxpayers attached to their return a copy of a separation

agreement, which was signed by both the custodial and

noncustodial parents.   The separation agreement unconditionally

granted the noncustodial parent the dependency exemption

deductions.   The Court held that the separation agreement met the

requirements of a written declaration under section 152(e)(2)

because it conformed in substance to Form 8332.

     Similar to the separation agreement in Boltinghouse,

petitioners contend that the shared parenting plan is signed by

both the custodial and noncustodial parents.    However, simply

because the custodial parent signed the shared parenting plan

does not end the analysis.    The shared parenting plan must

conform in substance to Form 8332.



     4
        We hasten to note that a copy of the shared parenting
plan was not attached to petitioners’ return as contemplated by
the statute. Although this omission might be sufficient for us
to sustain respondent’s determination, the parties framed the
issue in terms of whether the shared parenting plan constituted a
written declaration under sec. 152(e)(2). Accordingly, our
analysis follows that approach.
                                - 8 -

     Unlike the separation agreement in Boltinghouse v.

Commissioner, supra, the shared parenting plan at issue is

conditional; namely, that Mr. Dyer is entitled to “the tax

exemptions for all three (3) children beginning tax year 1998

provided he is current in his child support obligation.”

(Emphasis added.)    This condition suggests that Mr. Dyer’s

compliance with his support obligations may change from year to

year, such that his entitlement to the dependency exemption

deductions for his children is potentially subject to change each

year.    Although Mr. Dyer met the condition in 2006, the Internal

Revenue Service cannot be expected to police divorce decrees and

separation agreements.    Because of its conditional nature, the

relevant part of the shared parenting plan does not constitute an

equivalent to Form 8332 and thus does not comport with the

requirements of section 152(e)(2).      See also Brissett v.

Commissioner, T.C. Memo. 2003-310.

     Therefore, we find that the shared parenting plan does not

constitute a written declaration under section 152(e)(2).

Accordingly, petitioners are not entitled to dependency exemption

deductions for Mr. Dyer’s two youngest children for 2006.5

     5
        For future tax returns, if Ms. Weaver were to properly
complete and execute a Form 8332 releasing her claim to the
dependency exemption deduction, and if petitioners were to attach
such form to their return, then, at least for the taxable year or
years subject to such form, petitioners might succeed in avoiding
the issues that have arisen in the present case. Although Mr.
                                                   (continued...)
                               - 9 -

C.   Child Tax Credit

      Section 24(a) provides that a taxpayer may claim a credit

for “each qualifying child”.   The term “qualifying child” means a

qualifying child of the taxpayer as defined in section 152(c) who

has not attained the age of 17.   Sec. 24(c)(1).   A taxpayer may

also satisfy the qualifying child requirement if the taxpayer

establishes entitlement to the dependency exemption deduction

under the exception of section 152(e)(2).     Walker v.

Commissioner, T.C. Memo. 2008-194.     Because petitioners did not

establish that Mr. Dyer’s youngest child was a qualifying child

under either section 152(c) or the exception under section

152(e)(2), the qualifying child requirement of the child tax

credit under section 24 has not been satisfied.    Thus,

petitioners are not entitled to the child tax credit they claimed

with respect to Mr. Dyer’s youngest child for 2006.

                            Conclusion

      We have considered all of the arguments made by petitioners,

and, to the extent that we have not specifically addressed them,

we conclude that they are without merit.




      5
      (...continued)
Dyer and Ms. Weaver may not be on the best of terms, we note that
the divorce court retained jurisdiction over all matters
involving the parties’ children.
                        - 10 -

To reflect the foregoing,


                                  Decision will be entered

                             under Rule 155.
