                  T.C. Summary Opinion 2011-32



                     UNITED STATES TAX COURT



                SCOTT LYND SYMONDS, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 23963-09S.             Filed March 17, 2011.



     Scott Lynd Symonds, pro se.

     Luanne DiMauro, for respondent.



     PANUTHOS, Chief 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.1   Pursuant to

section 7463(b), the decision to be entered is not reviewable by



     1
      Unless otherwise indicated, all section references are to
the Internal Revenue Code in effect for the year in issue. All
Rule references are to the Tax Court Rules of Practice and
Procedure.
                                - 2 -

any other court, and this opinion shall not be treated as

precedent for any other case.

     Respondent determined a deficiency of $3,382 in petitioner’s

2007 Federal income tax.   After concessions,2 the issues for

decision are:   (1) Whether petitioner is entitled to a dependency

exemption deduction for A.S.;3 (2) whether petitioner is entitled

to head of household filing status; and (3) whether petitioner is

entitled to the additional child tax credit.

                            Background

     Some of the facts have been stipulated, and we incorporate

the stipulation of facts and the accompanying exhibits by this

reference.   Petitioner resided in Connecticut when his petition

was filed.

     Petitioner and Marilee Peterson (Ms. Peterson) are the

parents of A.S.   The couple never married.   Petitioner and Ms.

Peterson could not resolve custody issues on their own and turned

to the superior court in New Haven, Connecticut, to resolve the




     2
      Respondent disallowed petitioner’s claimed earned income
credit (EIC). Petitioner did not address the disallowance of the
EIC in his petition; therefore this issue is deemed conceded.
See Rule 34(b)(4). Respondent also determined a change to
petitioner’s itemized deductions for 2007, reducing the claimed
deduction by $1. This issue was also not addressed in
petitioner’s petition and is deemed conceded. See id.
     3
      The Court refers to minor children by their initials.     See
Rule 27(a)(3).
                                 - 3 -

matter.    An order was issued on November 9, 1999, outlining

custody of and support for A.S.

     The order provides as follows.      Petitioner and Ms. Peterson

have joint legal custody of A.S. and that Ms. Peterson has

residential custody.4   Petitioner’s visitation begins at 8 a.m.

on Tuesday and ends at 5 p.m. Thursday of each week.     The order

further provides that petitioner was to begin picking A.S. up

after school in the fall of 2000 on Mondays with the same dropoff

time on Thursdays.   Petitioner and Ms. Peterson will alternate

the holidays of Halloween, Thanksgiving, and Christmas.     A.S.

will spend Easter, Memorial Day, Labor Day, and New Year’s Day

with Ms. Peterson, unless the holiday falls on regularly

scheduled time with petitioner.    A.S. will spend the 4th of July

with petitioner, and each parent will have 2 weeks’ uninterrupted

vacation each summer with A.S.    Mother’s Day and Father’s Day

will be spent with the appropriate parent.

     The order also provides guidelines for child support as

follows.   Petitioner will pay Ms. Peterson $98 a week in child

support, and Ms. Peterson will provide medical insurance for A.S.

Ms. Peterson will pay the first $100 of unreimbursed medical

costs, and petitioner will pay 44 percent of the remaining




     4
      We interpret “residential custody” as equating to “physical
custody”.
                               - 4 -

unreimbursed medical costs.   The November 9, 1999, order has not

been modified.

     In 2007 A.S. spent 50 percent of the time living with

petitioner and the other 50 percent living with Ms. Peterson and

her husband.   Petitioner paid for A.S.’s private schooling at

Hamden Hall Country Day School in 2007 and 50 percent of A.S.’s

medical expenses in 2007.   Petitioner reported $17,291 of

adjusted gross income (AGI) for 2007.   Ms. Peterson was

unemployed in 2007, but her filing status and her household’s AGI

for 2007 are unknown.

     Petitioner timely filed his Federal income tax return for

2007 (return).   On the return petitioner claimed a dependency

exemption deduction for A.S., head of household filing status,

and the additional child tax credit.    Petitioner attached to his

return neither Form 8332, Release of Claim to Exemption for Child

of Divorced or Separated Parents, nor a statement conforming to

Form 8332 signed by Ms. Peterson.

     Respondent issued a notice of deficiency dated July 6, 2009,

determining a deficiency of $3,382.    Respondent determined that

petitioner is not entitled to a dependency exemption deduction

for A.S., head of household filing status, or the additional

child tax credit.
                                - 5 -

                             Discussion

     In general, the Commissioner’s determination set forth in a

notice of deficiency is presumed correct, and the taxpayer bears

the burden of showing that the determination is in error.     Rule

142(a); Welch v. Helvering, 290 U.S. 111, 115 (1933).     Deductions

are a matter of legislative grace.      Deputy v. du Pont, 308 U.S.

488, 493 (1940); New Colonial Ice Co. v. Helvering, 292 U.S. 435,

440 (1934).   A taxpayer bears the burden of proving entitlement

to any deduction claimed.    Rule 142(a); INDOPCO, Inc. v.

Commissioner, 503 U.S. 79, 84 (1992); Welch v. Helvering, supra;

Wilson v. Commissioner, T.C. Memo. 2001-139.

     Pursuant to section 7491(a), the burden of proof as to

factual matters shifts to the Commissioner under certain

circumstances.   Petitioner has neither alleged that section

7491(a) applies nor established his compliance with the

substantiation and recordkeeping requirements.     See sec.

7491(a)(2)(A) and (B).   Petitioner therefore bears the burden of

proof.   See Rule 142(a).

I.   Dependency Exemption Deduction

     Section 151 allows as a deduction an exemption for each

dependent of the taxpayer.   Sec. 151(c).    Section 152(a)(1)

defines the term “dependent” to include a qualifying child,

provided that the requirements of relationship, residency, age,

and support are met.   See sec. 152(c).
                                 - 6 -

     Generally, a child who is in the custody of one or both of

the child’s parents for more than one-half of the calendar year

and receives more than one-half of his or her support from

parents who live apart at all times during the last 6 months of

the calendar year will be considered the qualifying child of the

custodial parent.    Sec. 152(e)(1).

     Section 1.152-4(b), Income Tax Regs., provides that custody

“will be determined by the terms of the most recent decree” if

there is one in effect.     If there is no decree in effect,

“‘custody’ will be deemed to be with the parent who, as between

both parents, has the physical custody of the child for the

greater portion of the calendar year.”     Id.

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

section 152(e)(1).   If the noncustodial parent attaches to his or

her Federal income tax return a signed, written declaration that

the custodial parent will not claim the child for such taxable

year, the child will be considered the qualifying child of the

noncustodial parent.   See sec. 152(e)(2); sec. 1.152-4T(a), Q&A-

3, Temporary Income Tax Regs., 49 Fed. Reg. 34459 (Aug. 31,

1984).   The special support test of section 152(e)(1) applies to

parents who have never married each other.       King v. Commissioner,

121 T.C. 245, 250 (2003).

     The declaration required by section 152(e)(2)(A) must be

made either on Form 8332 or in a statement conforming to the
                                  - 7 -

substance of that form.      Miller v. Commissioner, 114 T.C. 184,

189 (2000).

     We must decide which parent had custody of A.S. in 2007.

The regulations provide two legal avenues to determine custody.

First, the terms of the most recent decree in effect will

determine custody.      See sec. 1.152-4(b), Income Tax Regs.   The

unmodified 1999 order is still in effect and grants physical

custody to Ms. Peterson.      Therefore, Ms. Peterson is the

custodial parent of A.S.      The second legal avenue to determine

custody applies only if there is no decree or separation

agreement.    See id.    Because there is a custody order in effect,

we need not examine which parent had physical custody of A.S. for

the greater portion of 2007.

     As the noncustodial parent, petitioner must attach to his

return a written declaration from Ms. Peterson stating that she

will not claim A.S. as a dependent for 2007.      See sec. 152(e)(2);

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

Petitioner did not attach to his return a signed, written

declaration from Ms. Peterson relinquishing her claim to A.S. as

her qualifying child for 2007.      See sec. 152(e)(2); Miller v.

Commissioner, supra; sec. 1.152-4T(a), Q&A-3, Temporary Income

Tax Regs., supra.

     Petitioner argues that the AGI test of section

152(c)(4)(B)(ii) should be used to determine which parent can
                                - 8 -

claim A.S. as a qualifying child.   Petitioner’s reliance on that

clause of section 152(c)(4)(B) is misplaced, as the provisions of

section 152(e) are applicable “Notwithstanding[5] subsection * * *

(c)(4)”.   Sec. 152(e)(1).

      A.S. is the qualifying child and the dependent of Ms.

Peterson for 2007.   Therefore, petitioner is not entitled to a

dependency exemption deduction for A.S. for 2007.

II.   Head of Household Filing Status

      Section 1(b) imposes a special income tax rate on an

individual taxpayer who files a Federal income tax return as a

head of household.   Section 2(b) in pertinent part defines a head

of household as an individual taxpayer who:   (1) Is unmarried as

of the close of the taxable year and is not a surviving spouse;

and (2) maintains as his home a household that constitutes for

more than one-half of the taxable year the principal place of

abode, as a member of such household, of a qualifying child of

the individual.   See also, e.g., Rowe v. Commissioner, 128 T.C.

13, 16-17 (2007).

      Since we find above that A.S. is not petitioner’s qualifying

child for 2007, petitioner is not entitled to head of household

filing status.    Petitioner’s proper filing status is single for

2007.


      5
      The legal definition of notwithstanding is “Despite; in
spite of”. Black’s Law Dictionary 1094 (8th ed. 2004).
                                - 9 -

III. Additional Child Tax Credit

     Section 24(a) provides a credit with respect to each

qualifying child of the taxpayer.    Section 24(c)(1) defines the

term “qualifying child” as a “qualifying child of the taxpayer

(as defined in section 152(c)) who has not attained age 17.”6

The child tax credit may not exceed the taxpayer’s regular tax

liability.   Sec. 24(b)(3).   Where a taxpayer is eligible for the

child tax credit but the taxpayer’s regular tax liability is less

than the amount of the child tax credit potentially available

under section 24(a), section 24(d) makes a portion of the credit,

known as the additional child tax credit, refundable.

     As previously discussed, A.S. was not petitioner’s

qualifying child for 2007.    Therefore petitioner is not entitled

to the additional child tax credit for 2007.

                              Conclusion

     For the reasons discussed herein, petitioner is not entitled

to a dependency exemption deduction, head of household filing

status, or the additional child tax credit for 2007.

Respondent’s determination is therefore sustained.

     We have considered the parties’ arguments and, to the extent

not discussed herein, we conclude the arguments to be irrelevant,

moot, or without merit.

     6
      The credit is reduced by $50 for each $1,000 (or fraction
thereof) by which an individual’s modified AGI exceeds specified
amounts not relevant herein. See sec. 24(b).
                        - 10 -

To reflect the foregoing,


                                  Decision will be entered

                             for respondent.
