                     T.C. Summary Opinion 2008-34



                        UNITED STATES TAX COURT



                    MICHAEL ARTAYET, Petitioner v.
             COMMISSIONER OF INTERNAL REVENUE, Respondent



        Docket No. 25328-06S.           Filed April 7, 2008.



        Michael Artayet, pro se.

        Innessa Glaszman-Molot, for respondent.



     DEAN, 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.    Pursuant to section 7463(b),

the decision to be entered is not reviewable by any other court,

and this opinion shall not be treated as precedent for any other

case.     Unless otherwise indicated, subsequent section references

are to the Internal Revenue Code in effect for the year in issue,
                              - 2 -

and all Rule references are to the Tax Court Rules of Practice

and Procedure.

     Respondent denied petitioner’s dependency exemption

deduction and child tax credit, determining a $1,717 deficiency

in petitioner’s 2004 Federal income tax.   The issue for decision

is whether petitioner is entitled to claim a dependency exemption

deduction for his minor child, A.A.1

                           Background

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

The stipulation of facts and the exhibits received into evidence

are incorporated herein by reference.   At the time the petition

was filed, petitioner resided in Virginia.

     Petitioner and his former spouse divorced in 1997.    The

marriage produced two daughters, A.A. and C.A.   During

petitioner’s divorce proceedings, the “District Court of * * *

County” issued an order (1995 order) that provided that

petitioner and his former spouse were each entitled to claim one

child as a dependent for income tax purposes.    The 1995 order was

superseded by a “Final Decree of Divorce” in 1997 (1997 divorce


     1
        Respondent disallowed the $1,000 child tax credit claimed
by petitioner. The issue of whether petitioner is entitled to
claim the credit was not argued by the parties. The resolution
of that issue will be resolved by the Court’s decision as to
petitioner’s entitlement to claim a dependency exemption
deduction for A.A. A taxpayer is ineligible to claim a child tax
credit unless he is entitled to claim a dependency exemption
deduction for a child. See sec. 24(a), (c)(1)(A).
                                - 3 -

decree).    The 1997 divorce decree provides that petitioner and

his former spouse were to have joint legal custody.     Petitioner’s

former spouse was awarded physical custody, and petitioner was

entitled to visitation rights; i.e., alternating weekends,

certain holidays, school vacations, and 3 weeks during the

summer.    The 1997 divorce decree did not specify who was entitled

to claim the children as dependents for tax purposes.

     For 2004 petitioner filed a Form 1040, U.S. Individual

Income Tax Return.    Petitioner claimed a dependency exemption

deduction for A.A. and a $1,000 child tax credit.     Petitioner did

not attach Form 8332, Release of Claim to Exemption for Child of

Divorced or Separated Parents, or its equivalent to his Form

1040.

     For 2004 A.A. received $2,408.94 as compensation for

services.    A.A. filed a Form 1040 and did not claim a personal

exemption deduction for herself.

                             Discussion

Burden of Proof

     The Commissioner’s determinations in a notice of deficiency

are presumed correct, and the taxpayer bears the burden to prove

that the determinations are in error.     See Rule 142(a); Welch v.

Helvering, 290 U.S. 111, 115 (1933).      But the burden of proof on

factual issues that affect the taxpayer’s tax liability may be

shifted to the Commissioner where the “taxpayer introduces
                                 - 4 -

credible evidence with respect to * * * such issue.”    See sec.

7491(a)(1).    Petitioner has not alleged that section 7491(a)

applies; however, the Court need not decide whether the burden

shifted to respondent pursuant to section 7491(a) since the

Court’s analysis is based on the record before it and not on who

bears the burden of proof.

Dependency Exemption Deduction

       Respondent urges the Court to sustain the disallowance of

petitioner’s dependency exemption deduction since petitioner was

not A.A.’s custodial parent and he did not attach Form 8332 or

its equivalent to his Form 1040 as required by section 152(e)(2)

and section 1.152-4T(a), Q&A-3, Temporary Income Tax Regs., 49

Fed. Reg. 34459 (Aug. 31, 1984).

       In pertinent part, section 151(c) allows a taxpayer to claim

as a deduction the exemption amount for each “dependent” who is

the taxpayer’s child and satisfies certain age requirements, sec.

151(c)(1)(B), or whose gross income for the calendar year in

which the taxpayer’s taxable year begins is less than the

personal exemption amount, sec. 151(c)(1)(A).    The term

“dependent” is defined to include a taxpayer’s daughter over half

of whose support for the calendar year in which the taxable year

of the taxpayer begins was received from the taxpayer or is

treated as received from the taxpayer under section 152(c) or

(e).    See sec. 152(a)(1).
                                - 5 -

     A.A.’s gross income was less than the $3,100 personal

exemption amount, see Rev. Proc. 2003-85, sec. 3.16, 2003-2 C.B.

1184, 1188; thus, A.A. is not excepted from the definition of a

dependent by section 151(c)(1)(A).      A.A. was 16 years old at the

close of the 2004 calendar year; thus, A.A. is not excepted from

the definition of a dependent by section 151(c)(1)(B).     A.A.’s

status as petitioner’s dependent and petitioner’s entitlement to

the dependency exemption deduction hinge on section 152(a) and

(e), which limits the dependency exemption deduction in the case

of divorced, or otherwise separated, parents.

     In pertinent part, section 152(e)(1) sets forth the

following general rule:   if the child received over half of her

support during the calendar year from her divorced parents and

the child is in the custody of one or both parents for more than

one-half of the calendar year, then the child is treated as

receiving over half of her support during the calendar year from

the parent having custody for the greater portion of the calendar

year (the custodial parent).2   Custody is determined by the most

recent divorce decree or other written instrument.     See sec.

1.152-4(b), Income Tax Regs.    If custody is split, then custody



     2
        The exceptions in sec. 152(e)(3) and (4) do not apply.
There was no multiple support agreement as defined in sec.
152(c); and since the divorce decree was issued in 1997, there is
no pre-1985 instrument. Thus, petitioner is entitled to the
dependency exemption deduction only if the requirements of sec.
152(e)(2) are met.
                               - 6 -

is deemed to be with the parent who has physical custody for the

greater portion of the calendar year.   See id.

     Section 152(e)(2) provides an exception to the general rule

of section 152(e)(1):   if the custodial parent signs a written

declaration that he will not claim the child as a dependent and

the noncustodial parent attaches the written declaration to his

return for the taxable year, then the noncustodial parent is

entitled to the dependency exemption deduction.    For purposes of

section 152(e)(2), the term “noncustodial parent” means the

parent who is not the custodial parent.   Sec. 152(e)(2).

     In order for the noncustodial parent to claim the dependency

exemption deduction, section 152(e)(2) clearly requires the

custodial parent to release the dependency exemption deduction by

signing a written declaration to that effect.     See Miller v.

Commissioner, 114 T.C. 184, 195 (2000); see also sec.

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

that a noncustodial parent may claim the dependency exemption

deduction only if the noncustodial parent attaches to his Federal

income tax return for the year of the exemption a written

declaration from the custodial parent stating that he will not

claim the child as a dependent).   The written declaration may be

made on a form provided by the IRS or a document that conforms to

its substance.   See Miller v. Commissioner, supra at 190-191

(citing section 1.152-4T(a), Q&A-3, Temporary Income Tax Regs.,
                               - 7 -

supra); see also Neal v. Commissioner, T.C. Memo. 1999-97.     The

written declaration is embodied in Form 8332, which incorporates

the requirements of section 152(e)(2).   See Miller v.

Commissioner, supra at 191.3

     Petitioner and his former spouse share joint legal custody

of their children, while the former spouse was awarded physical

custody.   Petitioner was entitled to visitation rights for

limited periods.   Because petitioner’s former spouse had physical

custody of A.A. for the greater portion of the calendar year, the

former spouse is the “custodial parent” as defined in section

152(e)(1).   Because petitioner, the noncustodial parent, did not

attach Form 8332 or its equivalent to his Form 1040, he is not

entitled to the dependency exemption deduction.

     Petitioner argues, however, that he is entitled to claim the

dependency exemption deduction for A.A. pursuant to the 1995

order.   Petitioner is attempting to create an ambiguity in the

1997 divorce decree by referencing the provisions of the 1995

order.   But as a general rule, if a decree on its face is capable

of being given a certain meaning or interpretation, then it is

not ambiguous.   See, e.g., Sun Oil Co. v. Madeley, 626 S.W.2d


     3
        Form 8332 requires the following: (1) Names of the
children and the years for which the exemption claims are
released; (2) custodial parent’s signature, the date thereof, and
his Social Security number; and (3) noncustodial parent’s name
and Social Security number. See Miller v. Commissioner, 114 T.C.
184, 190 (2000).
                               - 8 -

726, 732 (Tex. 1981).   And a reviewing court cannot look outside

the four corners of an unambiguous decree to determine the

issuing court’s intent.   See, e.g., Bruni v. Bruni, 927 S.W.2d

636 (Tex. App. 1995), revd. on other grounds 924 S.W.2d 366 (Tex.

1996); see also Magness v. McEntire, 808 S.W.2d 783, 784-785

(Ark. 1991) (stating that the determinative factor is the intent

of the court).

     Petitioner asserts further that the 1997 divorce decree,

which is silent on the issue of his entitlement to the dependency

exemption deduction, does not supersede the 1995 order.    But as

the later-in-time document, the 1997 divorce decree supersedes

the 1995 order.   Cf. Satterfield v. Satterfield, 419 So. 2d 601,

603 (Ala. Civ. App. 1982) (stating that a final divorce decree

superseded a separation agreement even if the agreement’s terms

were incorporated into the decree); Gloth v. Gloth, 153 S.E 879,

882 (Va. 1930) (divorce decree superseded contract between

parties relating to support and maintenance).   Thus, petitioner’s

argument is without merit.

     In any event, whether the instruments are ambiguous and

whether the 1995 order are superseded by the 1997 divorce decree

is irrelevant for the purposes of this proceeding.   The Court has

stated that the mere fact that a State court granted the taxpayer

the right to claim the dependency exemption deduction is

immaterial because a State court cannot determine issues of
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Federal tax law.   See Miller v. Commissioner, supra at 196 (and

cases cited thereat).4   Accordingly, respondent’s determination is

sustained.

     To reflect the foregoing,


                                      Decision will be entered for

                                 respondent.




     4
        The proper forum to resolve the issue as to petitioner’s
entitlement to claim the dependency exemption deduction pursuant
to the 1995 order or the 1997 divorce decree is a Virginia State
court where he can seek an interpretation of those instruments as
well as orders requiring the former spouse to sign Form 8332 or
its equivalent.
