                  T.C. Summary Opinion 2004-123



                     UNITED STATES TAX COURT



                 BRIAN MONTWILLO, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 14348-03S.             Filed September 7, 2004.


     Brian Montwillo, pro se.

     Henry E. O’Neill, for respondent.


     THORNTON, 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.1   The decision to be entered

is not reviewable by any other court, and this opinion should not

be cited as authority.




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

     Respondent determined a $3,192 deficiency in petitioner’s

2001 Federal income tax.   The issues presented are whether

petitioner can claim dependency exemption deductions, a child tax

credit, and head-of-household filing status for 2001.

                             Background

     When he filed his petition, petitioner resided in Kapolei,

Hawaii.

     Petitioner and Anita Oliver-Montwillo (Ms. Oliver-Montwillo)

were married in 1991.    On June 23, 1997, they separated pursuant

to a written separation agreement and remained separated until

their divorce in 2002.   They have two children (the children).

     During 2001, petitioner resided in Kapolei, Hawaii, and Ms.

Oliver-Montwillo lived with her mother, Marie Oliver, in Mahopac,

New York.   During 2001, Ms. Oliver-Montwillo had legal and

physical custody of the children.   During 2001, petitioner paid

$8,809.40 in child support, which represented more than half the

children’s total support for that year.

     Ms. Oliver-Montwillo did not waive her right to claim the

children as dependents for the 2001 tax year.   Nevertheless, on

his 2001 Federal income tax return, petitioner computed his tax

using head-of-household filing status and claimed dependency

exemption deductions and a child tax credit with respect to the
                                - 3 -

children.    Marie Oliver also claimed dependency exemption

deductions for the children on her 2001 Federal income tax return.

     On May 27, 2003, respondent issued a statutory notice of

deficiency to petitioner, disallowing the dependency exemption

deductions and child tax credit, and changing his filing status

to single.

                             Discussion

     Because we decide this case on the preponderance of the

evidence, without regard to the burden of proof, section 7491(a)

is inapplicable.

     1.     Dependency Exemption Deductions

     A taxpayer is allowed a dependency exemption deduction for

each dependent.    Sec. 151(a), (c).    To qualify as a taxpayer’s

dependent, the taxpayer’s child generally must be under age 19

(age 24 if the child is a student) and receive over half of his

or her support from the taxpayer during the taxable year.      Secs.

151(c)(1)(B), 152(a).

     Pursuant to the provisions of section 152(e)(1), as relevant

here, the custodial parent is generally entitled to the

dependency exemption deduction, if the parents provide over half

the child’s support and the taxpayers are separated under a

written agreement.    As an exception to this general rule, the

noncustodial parent may be entitled to claim the dependency

exemption deduction if (1) the custodial parent releases her
                                 - 4 -

claim to the dependency exemption deduction by signing a written

declaration to that effect, and (2) the noncustodial parent

attaches this written declaration to his income tax return.    Sec.

152(e)(2).

     During 2001, Ms. Oliver-Montwillo was the custodial parent

of the children.   During 2001, the children received over half

their support from their parents, who were separated under a

written separation agreement.    Pursuant to section 152(e)(1),

then, Ms. Oliver-Montwillo is entitled to claim the dependency

exemption deductions for 2001.    She has not released her claim to

the exemptions for 2001.   Petitioner is not entitled to the

dependency exemption deductions for 2001.

     2.   Child Tax Credit

     Section 24 allows a tax credit for each “qualifying child”

of a taxpayer.   Sec. 24(a).   To be a qualifying child, an

individual must, among other things, qualify as the taxpayer’s

dependent. Sec. 24(c).

     As just discussed, the children do not qualify as

petitioner’s dependents.   Therefore, petitioner is not entitled

to claim the child tax credit.

     3.   Filing Status

     An individual qualifies as a head of household if, among

other things, he is not married at the close of the taxable year

and maintains a home that serves as the principal place of abode
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for his children for more than half the taxable year.   Sec.

2(b)(1).

     On the basis of all the evidence, we conclude that

petitioner did not maintain a home that served as the principal

place of abode for the children for any part of 2001.   We sustain

respondent’s determination that petitioner’s proper filing status

for 2001 is single.2


                                        Decision will be entered

                                   for respondent.




     2
       Respondent has not raised and we do not consider any issue
as to whether petitioner’s proper filing status for 2001 should
be married filing separately.
