                  T.C. Summary Opinion 2006-168



                      UNITED STATES TAX COURT



                 JOHN B. ANDERSON, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 847-06S.                Filed October 18, 2006.



     John B. Anderson, pro se.

     Terry Serena and Louis H. Hill, for respondent.



     COHEN, 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, all section

references are to the Internal Revenue Code in effect for the

year in issue.
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     Respondent determined a deficiency of $1,363 in petitioner’s

Federal income tax for 2003.   The issues for decision are whether

petitioner is entitled to claim a dependency exemption deduction

for his daughter and whether petitioner is entitled to a child

tax credit.

                            Background

     Petitioner resided in Huntington, West Virginia, at the time

he filed his petition.

     Petitioner is the unmarried father of J.W.   In compliance

with a November 5, 1997, child support order issued by the

Circuit Court of Cabell County, West Virginia, petitioner paid

nearly 90 percent of the total determined support obligation for

J.W. in 2003, and he maintained health insurance on J.W.’s

behalf.   J.W.’s mother is the custodial parent of J.W.

     Petitioner claimed a deduction for a dependency exemption

and a child tax credit for J.W. on his 2003 tax return.

Respondent disallowed the dependency exemption and the child tax

credit, explaining in the notice of deficiency that “whoever has

been appointed custodial parent by the court system is entitled

to the dependent exemption unless he or she expressly waives the

right to claim the exemption.”    The notice also explained that,

because the child tax credit can be claimed only by a taxpayer

who is eligible to claim the dependency exemption deduction, the

child tax credit petitioner claimed for 2003 was also disallowed.
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                            Discussion

     The Internal Revenue Code allows as a deduction an exemption

for each dependent of a taxpayer in computing taxable income.

Sec. 151(c).   A child of a taxpayer is generally a qualified

dependent only if the taxpayer provides over half of the child’s

support during the taxable year.   Sec. 152(a)(1).   However,

section 152(e)(1) limits the dependency exemption where the

child’s parents live apart, as follows:

          SEC. 152(e). Support Test in Case of Child of
     Divorced Parents, Etc.–-

               (1) Custodial parent gets exemption.–-Except
          as otherwise provided in this subsection, if--

                     (A) a child (as defined in section
                151(c)(3)) receives over half of his support
                during the calendar year from his parents--

                          (i) who are divorced or legally
                     separated under a decree of divorce or
                     separate maintenance,

                          (ii) who are separated under a
                     written separation agreement, or

                          (iii) who live apart at all times
                     during the last 6 months of the calendar
                     year, and

                     (B) such child is in the custody of one
                or both of his parents for more than one-half
                of the calendar year,

          such child shall be treated, for purposes of
          subsection (a), as receiving over half of his
          support during the calendar year from the parent
          having custody for a greater portion of the
          calendar year (hereinafter in this subsection
          referred to as the “custodial parent”).
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While section 152(e) provides for certain exceptions to this

rule, none of those exceptions applies to this case.

     Petitioner provided more than half of J.W.’s support in

2003.   However, petitioner is not J.W.’s custodial parent, and

J.W. did not live with him for more than half of 2003.    Thus,

section 152(e)(1) denies petitioner a dependency exemption

deduction for J.W. in 2003.

     Petitioner argues that section 152(e)(1) applies only where

a child’s parents were at one time married.   In support of his

argument, petitioner cites inconsistent positions taken by the

Internal Revenue Service (IRS) at various times.     See King v.

Commissioner, 121 T.C. 245, 249 n.6 (2003).   Apparently,

respondent allowed petitioner, as the noncustodial parent, to

claim J.W. as his dependent at least once in previous years.

     Upon review of petitioner’s tax return for 2003, however,

respondent disallowed the claimed dependency exemption deduction

and the related child tax credit for J.W.   In a letter dated

June 29, 2006, an IRS Appeals officer notified petitioner that

this Court recently had held, on similar facts, that “the

legislative history of section 152(e) does not provide support

for deviating from the plain meaning of the statute that the

special support test can apply to parents who have never married

each other.”   King v. Commissioner, supra at 251.    In any event,

the Commissioner is not bound for any given tax year to allow a
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deduction erroneously permitted for a prior year.          See, e.g.,

Lerch v. Commissioner, 877 F.2d 624, 627 n.6 (7th Cir. 1989),

affg. T.C. Memo. 1987-295; Pekar v. Commissioner, 113 T.C. 158,

166 (1999).

     Although petitioner provided over 50 percent of J.W.’s

support in 2003, he is not J.W.’s custodial parent, and no

exception under section 152(e) applies to allow petitioner to

claim a dependency exemption deduction for J.W.       Therefore,

petitioner is not entitled to a section 151 deduction for a

dependency exemption for 2003.

     Section 24(a) allows taxpayers a credit against tax imposed

for each qualifying child.   Section 24(c)(1)(A) provides that a

“qualifying child” for purposes of section 24 is “any individual

if * * * the taxpayer is allowed a deduction under section 151

with respect to such individual for the taxable year”.          Because

petitioner is not entitled to a dependency exemption deduction

under section 151, he is not entitled to a child tax credit under

section 24.

     To reflect the foregoing,


                                              Decision will be entered

                                         for respondent.
