                          T.C. Memo. 2002-290



                     UNITED STATES TAX COURT



                 STEVE DALE HORN, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 841-02.                 Filed November 25, 2002.


     Steve Dale Horn, pro se.

     Thomas C. Pliske, for respondent.


                          MEMORANDUM OPINION


     THORNTON, Judge:     Respondent determined a $1,427 deficiency

in petitioner’s 1998 Federal income tax.       The sole issue is

whether petitioner, as a noncustodial parent, is entitled to
                                 - 2 -

dependency exemption deductions for his three children under

section 151.1

                              Background

     The parties have stipulated many of the facts, which we

incorporate herein by this reference.      When he petitioned this

Court, petitioner resided in Rolla, Missouri.

         Petitioner and his wife, Rochelle Horn (Rochelle), had

three children (the children):     Niccole, born October 1, 1981;

Virginia, born October 31, 1987; and Wesley, born December 20,

1990.

     On February 9, 1995, petitioner and Rochelle divorced.       On

that same day, Rochelle signed a handwritten note, which stated:

“I agree to give Steve the children as tax deduction[s] only if

it does not interfer[e] with my ability to receive Federal

Student Aid.”

     During 1998, none of the children resided with petitioner.

That year, petitioner paid Rochelle $9,435 as child support.

     On his 1998 Form 1040A, U.S. Individual Income Tax Return,

petitioner claimed dependency exemption deductions with respect

to the children.     He attached to his 1998 Form 1040A an unsigned

and undated Form 8332, Release of Claim to Exemption for Child of

Divorced or Separated Parents.     He also attached to his 1998 Form



     1
       Unless otherwise indicated, all section references are to
the Internal Revenue Code in effect for the year at issue.
                                - 3 -

1040A a handwritten note, dated February 23, 1999, which stated

as follows:

     To Whom it may Concern,

     As in the previous years, my ex-spouse Rochelle
     (Shellie) Jane Horn refuses to sign Form 8332 stating
     it would “mess up” her ability to receive financial
     [aid] for her schooling.

     Sincerely,
     Steven D. Horn

     In the notice of deficiency, respondent disallowed

petitioner’s claimed exemption deductions for the children on the

grounds that petitioner had failed to verify his entitlement

thereto.

                             Discussion

     A taxpayer generally may deduct an exemption amount for each

dependent child under 19 years of age.    Sec. 151(c)(1)(B)(i).    To

be entitled to claim a child as a dependent, the taxpayer

generally must provide over half the child’s support.     Sec.

152(a).    If the child’s parents are divorced or separated, the

child will generally be treated as receiving over half of his

support from the custodial parent; i.e., the parent having

custody for a greater portion of the calendar year.    Sec.

152(e)(1).    As an exception to this general rule, the

noncustodial parent is treated as providing over half the support
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if the custodial parent releases his or her claim to the

exemption for the year.2    This exception applies only if:

          (A) the custodial parent signs a written
     declaration (in such manner and form as the Secretary
     may by regulations prescribe) that such custodial
     parent will not claim such child as a dependent for any
     taxable year beginning in such calendar year, and

          (B) the noncustodial parent attaches such written
     declaration to the noncustodial parent’s return for the
     taxable year beginning during such calendar year.
     [Sec. 152(e)(2)(A) and (B).]

     Under the applicable regulations, to claim an exemption for

a dependent child, a noncustodial parent must attach to his or

her income tax return a “written declaration from the custodial

parent stating that he/she will not claim the child as a

dependent for the taxable year beginning in such calendar year.”

Sec. 1.152-4T(a), Q&A-3, Temporary Income Tax Regs., 49 Fed. Reg.

34459 (Aug. 31, 1984).     The custodial parent may make this

written declaration on Form 8332.     See Miller v. Commissioner,

114 T.C. 184, 190 (2000), affd. on another ground sub nom.

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

1.152-4T(a), Q&A-3, Temporary Income Tax Regs., supra.     Form 8332

requires, among other things, that the custodial parent sign a

statement that “I agree not to claim an exemption for” the child


     2
       Two other exceptions to the general rule of sec. 152(e)(1)
are inapplicable here: (1) There is no evidence of a multiple-
support agreement within the meaning of sec. 152(e)(3); and (2)
petitioner’s divorce occurred after 1984, and there is no
“qualified pre-1985 instrument” within the meaning of sec.
152(e)(4).
                               - 5 -

or children named on the form for the tax years specified on the

form.   A written declaration that is made other than on Form 8332

must “conform to the substance of such form.”    Sec. 1.152-4T(a),

Q&A-3, Temporary Income Tax Regs., supra.

     If the custodial parent releases the exemption for more than

1 year, “the original release must be attached to the return of

the noncustodial spouse and a copy of such release must be

attached to his/her return for each succeeding taxable year for

which he/she claims the dependency exemption.”    Id. at Q&A-4.

     It is undisputed that Rochelle was the children’s custodial

parent during 1998.   Accordingly, under the general rule of

section 152(e)(1), Rochelle gets the exemptions for the children.

As explained below, petitioner has not shown that Rochelle

released her claim to the exemptions in accordance with the

provisions of section 152(e)(2).

     The unsigned and undated Form 8332 which petitioner attached

to his 1998 Form 1040A is invalid as a release of Rochelle’s

claim to the exemptions.   See Miller v. Commissioner, supra at

190-191.

     Moreover, Rochelle’s February 9, 1995, handwritten note,

indicating that she agreed to “give” petitioner the exemptions

“only if it does not interfer[e] with my ability to receive

Federal Student Aid”, does not meet the requirements of a valid

release pursuant to section 152(e)(2) or otherwise conform to the

substance of Form 8332, as required by the applicable
                                - 6 -

regulations.    See sec. 1.152-4T(a), Q&A-3, Temporary Income Tax

Regs., supra.    The February 9, 1995, handwritten note fails to

identify the specific years to which it was meant to apply.      It

was not attached to petitioner’s 1998 return, as required by

section 152(e)(2)(B).    More fundamentally, it does not state

unconditionally that Rochelle agrees not to claim the exemptions.

See sec. 152(e)(2)(A); White v. Commissioner, T.C. Memo. 1996-

438.    In fact, as petitioner admitted in his February 23, 1999,

note attached to his 1998 Form 1040A, Rochelle refused to release

her claim to the exemptions for 1998.

       Accordingly, petitioner is not entitled to dependency

exemption deductions for the children for 1998.    See Neal v.

Commissioner, T.C. Memo. 1999-97; Cafarelli v. Commissioner, T.C.

Memo. 1994-265; Brown v. Commissioner, T.C. Memo. 1992-548, affd.

without published opinion 7 F.3d 1042 (8th Cir. 1995).

       In light of the foregoing,

                                               Decision will be

                                          entered for respondent.
