                    T.C. Summary Opinion 2006-2



                      UNITED STATES TAX COURT



         SHANE NOLAN AND MONIKA ANNE LEWIS, Petitioners v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent


     Docket No. 4152-04S.            Filed January 3, 2006.


     Shane Nolan and Monika Anne Lewis, pro se.

     Nhi T. Luu-Sanders, for respondent.



     COUVILLION, Special Trial Judge:   This case was heard

pursuant to section 7463 in effect when the petition was filed.1

The decision to be entered in this case is not reviewable by any

other court, and this opinion should not be cited as authority.




     1
      Unless otherwise indicated, section references hereafter
are to the Internal Revenue Code in effect for the year at issue,
and all Rule references are to the Tax Court Rules of Practice
and Procedure.
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     Respondent determined a deficiency in petitioners’ Federal

income tax for 2002 in the amount of $2,697.

     At trial, respondent conceded that petitioners are entitled

to a disallowed dependency exemption deduction for one of two

children claimed as dependents on their 2002 income tax return as

well as the section 24 child care credit with respect to that

child.   The remaining issue for decision is whether petitioners

are entitled under section 151 and related sections to the

dependency exemption deduction for another child and the child

care credit for that child claimed on their 2002 return.

     Some of the facts were stipulated.     Those facts, with the

exhibits annexed thereto, are so found and are made part hereof.

Petitioners’ legal residence at the time the petition was filed

was Vancouver, Washington.2

     Petitioners have one child of their marriage.     As noted

above, respondent conceded at trial petitioners’ entitlement to

the dependency exemption deduction and the section 24 child care

credit with respect to that child.     The issue is whether

petitioners are entitled to the dependency exemption deduction




     2
      This case is decided without regard to the burden of proof.
Sec. 7491(a).
                               - 3 -


and the child care credit with respect to another child of Shane

Nolan Lewis (petitioner).3

     The child was born on November 4, 1993.   Petitioner and the

child’s mother (the mother) were never married.   Petitioner and

the mother shared joint legal and physical custody of the child.

By court decree, the mother was declared custodial parent, and

petitioner was designated the noncustodial parent.   During the

year at issue, 2002, the child lived with his mother and her

parents at Anderson, California.   The child had extended visits

with petitioners during 2002, but the longevity of his combined

visits was considerably less than one-half of the taxable year,

approximately 98 days.

     During 2002, petitioners provided both financial and medical

support for the child.   The support consisted of child support

payments, tuition for special classes, dental expenses, and

approximately $430 for clothing and miscellaneous expenses.    In

addition, petitioner’s health insurance coverage with his

employer also included the child, the cost of which did not

require payment of any additional premium by petitioner.    The

total monetary support provided by petitioners during 2002 was

approximately $5,502.



     3
      Throughout the opinion, references to “the child” are to
this child and not the child as to whom respondent conceded the
dependency exemption deduction and child care credit adjustments.
                                - 4 -


     On their Federal income tax return for 2002, petitioners

claimed a dependency exemption deduction for the child and the

section 24 child care credit.   In the notice of deficiency,

respondent disallowed the dependency exemption deduction and the

child care credit.

     Petitioners did not attach to their 2002 income tax return a

consent from the child’s mother, Form 8332, Release of Claim to

Exemption for Child of Divorced or Separated Parents, or a Form

2120, Multiple Support Agreement, wherein the grandparents and

the mother of the child consented to petitioners’ claiming the

child as a dependent on their 2002 Federal income tax return.4

Petitioners nevertheless claimed the child as a dependent on

their 2002 Federal income tax return.   Respondent disallowed the

dependency exemption deduction for the reason that petitioners

had not established they were entitled to the exemption because



     4
      The Form 2120 is an acknowledgment by a group of
contributors who have collectively provided over one-half of a
dependent’s support for a calendar year and who may annually
designate one of their number to claim the dependency exemption
deduction for the dependent. The taxpayer who is designated as
entitled to claim the dependency exemption deduction must attach
a statement to his return identifying each member of the
supporting group and, in general, comply with sec. 1.152-3,
Income Tax Regs. Petitioners testified that they had solicited a
multiple support agreement from the grandparents and the mother
to allow petitioners the dependency exemption deduction for 2002;
however, the grandparents and the mother declined. Petitioners
also solicited a consent from the mother to allow petitioners the
dependency exemption deduction, and she also declined that
request.
                                - 5 -


the mother of the child, pursuant to the court decree, had

primary physical custody of the child.

     Section 151(c) allows taxpayers to deduct an annual

exemption amount for each dependent as defined in section 152.

Under section 152(a), the term “dependent” means certain

individuals, such as a son, daughter, stepson, or stepdaughter,

“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 under section (c) or (e) as received from

the taxpayer)”.

     The support test in section 152(e)(1) applies if:   (1) A

child receives over half of his support during the calendar year

from his parents; (2) the parents are separated under a written

separation agreement or live apart at all times during the last 6

months of the calendar year; and (3) such child is in the custody

of one or both of his parents for more than one-half of the

calendar year.    If these requirements are satisfied, the “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 (* * *

referred to as the ‘custodial parent’)”, sec. 152(e)(1)(B), thus

allowing the dependency exemption deduction to be claimed by the

“custodial parent”.
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     Section 1.152-4(b), Income Tax Regs., provides that custody

is determined by the terms of the most recent decree of divorce

or separate maintenance, or subsequent custody decree, or, if

none, a written separation agreement.    Since petitioner and the

mother were never married, there was no decree of divorce or

separate maintenance severing their relationship.    However, in a

subsequent court decree, the mother was decreed as having

principal custody of the child.   Under section 1.152-4(b), Income

Tax Regs., the mother was the child’s custodial parent.

Therefore, the mother was entitled to the dependency exemption

under section 152(e)(1), if she and petitioner provided more than

one-half of the child’s support, unless petitioners met one of

the exceptions set forth in section 152(e).

     The first exception, section 152(e)(2), allows the

noncustodial parent the dependency exemption if, among other

requirements not at issue here, the custodial parent signs a

written declaration that such parent will not claim the child as

a dependent for such taxable year.     The appropriate vehicle for

that purpose is Form 8332.   Petitioners sought but were not

successful in obtaining such a release from the mother.    The

other relevant exception, section 152(e)(4), requires a multiple

support agreement (see supra note 4) whereby petitioners would

have been allowed the dependency exemption deduction by the other

parties providing support to the child.     The other parties who
                               - 7 -


provided support were the child’s mother and her parents.    That

also was not agreed to by the child’s mother and her parents.

     One of the express conditions of section 152(e)(1) is that

the child claimed as a dependent receive over half of his support

during the calendar year from his parents, among other

requirements not pertinent here.   As noted above, the child,

during the year in question, lived with the grandparents along

with his mother.   There was no evidence offered to show the

amount of support the grandparents provided or the amount of

support the mother provided.   Although petitioners provided

$5,502 in support, petitioners have not established that this

amount constituted more than one-half of the total support

provided to the child that year by petitioners, the child’s

mother, and the child’s grandparents.

     Section 1.152-1(a)(2)(i), Income Tax Regs., provides that,

in determining whether an individual received over half of his

support from the taxpayer, “there shall be taken into account the

amount of support received from the taxpayer as compared to the

entire amount of support which the individual received from all

sources, including support which the individual himself

supplied.”   In Blanco v. Commissioner, 56 T.C. 512, 514-515

(1971), this Court held that, in establishing that more than one-

half of a dependent’s support has been provided, a prerequisite

to such a showing is the demonstration by competent evidence of
                                - 8 -


the total amount of the dependent’s support from all sources for

that year.   If the amount of total support is not established and

cannot be reasonably inferred from competent evidence available

to the Court, it is not possible to conclude that the taxpayer

claiming the exemption provided more than one-half of the support

of the claimed dependent.    Batson v. Commissioner, T.C. Memo.

2000-172.

     Petitioner did not meet any of the exceptions to section

152(e)(1).   Therefore, assuming that petitioner and the mother

together provided over one-half of the child’s support, the

mother is entitled to the dependency exemption for the child

pursuant to section 152(e)(1) as the custodial parent.   In the

event that petitioner and the mother did not provide over one-

half of the child’s support (e.g., such support was provided by

the grandparents), it follows that petitioners are not entitled

to deduct the dependency exemption for the child pursuant to

section 152(a).   Although petitioner provided $5,502 in support,

petitioners have not established that this amount constituted

more than one-half of the total support provided to the child by

petitioner, the child’s mother, and the child’s grandparents.

     The second issue is respondent’s disallowance of the child

tax credit claimed by petitioners under section 24.   Section 24

allows a credit against the tax for any qualifying child under

the age of 17.    However, a qualifying child is an individual for
                              - 9 -


whom the taxpayer can claim a dependency exemption deduction and

is the son or daughter of the taxpayer.    Since petitioners are

not entitled to the dependency exemption deduction for the child

for the year at issue, it follows that they are not entitled to

the section 24 child tax credit.

     Reviewed and adopted as the report of the Small Tax Case

Division.



                                           Decision will be entered

                                      under Rule 155.
