                        T.C. Memo. 2003-310



                      UNITED STATES TAX COURT



                NORMAN W. BRISSETT, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 11126-02.            Filed November 7, 2003.


     Norman W. Brissett, pro se.

     Richard A. Stone, for respondent.



             MEMORANDUM FINDINGS OF FACT AND OPINION


     PANUTHOS, Chief Special Trial Judge:     Respondent determined

a deficiency in petitioner’s Federal income tax of $1,568 for the

2000 taxable year.   Unless otherwise indicated, section

references are to the Internal Revenue Code in effect for the

year in issue.
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     The issue for decision is whether petitioner is entitled to

a deduction for dependency exemptions for his son and daughter

for the 2000 taxable year.

                         FINDINGS OF FACT

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

The stipulated facts and the related exhibits are incorporated

herein by this reference.    At the time of filing the petition,

petitioner resided in Silver Spring, Maryland.

     Petitioner was previously married to Barbara Walker Brissett

(Ms. Brissett).   They have two children:   (1) Jacquelynne M.

Brissett (Jacquelynne), born July 8, 1984, and (2) Dominic E.

Brissett (Dominic), born May 1, 1986.    On April 13, 1994,

petitioner and Ms. Brissett entered into a “Voluntary Separation

and Property Settlement Agreement” (separation agreement), which

provided in part:

          3. The parties shall have joint legal and
     physical custody of the parties’ minor children, whose
     primary residence shall be with Wife. * * * Husband
     shall have visitation with the minor children as
     follows: Every other weekend from Friday after school
     until Sunday at 7:30 P.M. The parties shall
     alternate/share holidays and special occasions as
     follows:

          (i) Husband shall have Christmas Eve each year
     with the minor children and Wife shall have Christmas
     Day each year with the minor children.

          (ii) The parties agree to alternate year to year
     Easter Day and Thanksgiving Day.
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          (iii) The children’s birthdays shall be shared
     each year so that both parents receive part of each
     child’s birthday to celebrate the day.

          (iv) The children will spend Father’s Day and
     Father’s Birthday with their father and Mother’s Day
     and Mother’s Birthday with their mother.

          With respect to summer, Wife shall have two (2)
     weeks’ vacation with the minor children during the
     children’s summer vacation period each year; Husband
     shall have one (1) week of vacation with the minor
     children each summer. The parties agree to coordinate
     their summer plans, giving due regard to which weeks
     either party may wish to take a summer vacation and any
     camp the children may attend.

              *      *     *     *     *      *     *

          15. * * * In 1995 and thereafter, Husband shall be
     entitled to claim both children as his dependents
     provided Husband is current on his child support
     payments. If Husband is in arrears with regard to his
     child support payments Wife shall be entitled to claim
     the children as her dependents. The parties agree to
     mutually execute and provide all tax forms necessary in
     this regard for the other. * * *

     The Circuit Court for Montgomery County, Maryland

incorporated the separation agreement in its “Judgment of

Absolute Divorce”.   Petitioner and Ms. Brissett were divorced on

April 19, 1994.

     Ms. Brissett had custody of Jacquelynne and Dominic for a

greater portion of 2000 than petitioner.

     On his Form 1040, U.S. Individual Income Tax Return, for the

2000 taxable year, petitioner claimed a deduction for dependency

exemptions for Jacquelynne and Dominic.    Petitioner did not

attach to his return a written declaration or Form 8332, Release
                                 - 4 -

of Claim to Exemption for Child of Divorced or Separated Parents,

executed by Ms. Brissett.   Petitioner asked Ms. Brissett to sign

a Form 8332 for the taxable year 2000, but she refused to do so.

Respondent, in a notice of deficiency dated April 23, 2002,

disallowed the deduction for dependency exemptions for

Jacquelynne and Dominic for the 2000 taxable year.

                              OPINION

     As the return for 2000 was filed after July 22, 1998,

section 7491(a) is applicable.    Petitioner did not assert nor

present evidence or argument that he satisfied the requirements

of section 7491(a).   We conclude that resolution of the issue

whether petitioner is entitled to the deduction for dependency

exemptions does not depend upon who has the burden of proof.

     A taxpayer may be entitled to claim as a deduction an

exemption amount for each of his or her dependents.    Sec. 151(c).

An individual must meet the following five tests in order to

qualify as a dependent of the taxpayer:    (1) Support test, (2)

relationship or household test, (3) citizenship or residency

test, (4) gross income test, and (5) joint return test.    Secs.

151 and 152.   If the individual fails any of these tests, he or

she does not qualify as a dependent.

     As to the support test, a taxpayer generally must provide

more than half of a claimed dependent’s support for the calendar

year in which the taxable year of the taxpayer begins.    Sec.
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152(a).    In the case of a child of divorced parents, if the child

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

one-half of the calendar year and receives more that half his

support during that year from his parents, such child shall be

treated, for purposes of section 152, as receiving over half of

his support during the calendar year from the parent having

custody for a greater portion of the calendar year (the custodial

parent).    Sec. 152(e)(1).       A custodial parent may release claim

to the exemption pursuant to the provisions of section 152(e)(2),

which provides:

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

                *     *       *       *     *     *    *

          (2) Exception where custodial parent releases
     claim to exemption for the year.--A child of parents *
     * * shall be treated as having received over half of
     his support during a calendar year from the
     noncustodial parent 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.

     For purposes of this subsection, the term “noncustodial
     parent” means the parent who is not the custodial
     parent.
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     The temporary regulations promulgated with respect to

section 152(e) provide that a noncustodial parent may claim the

exemption for a dependent child “only if the noncustodial parent

attaches to his/her income tax return for the year of the

exemption 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.”1    Sec. 1.152-

4T(a), Q&A-3, Temporary Income Tax Regs., 49 Fed. Reg. 34459

(Aug. 31, 1984); see Miller v. Commissioner, 114 T.C. 184, 188-

189 (2000), affd. on another ground sub nom. Lovejoy v.

Commissioner, 293 F.3d 1208 (10th Cir. 2002).     The declaration

required under section 152(e)(2) must be made either on a

completed Form 8332 or on a statement conforming to the substance

of Form 8332.   Miller v. Commissioner, supra at 189.

     Form 8332 requires a taxpayer to furnish (1) the names of

the children for which exemption claims were released, (2) the

years for which the claims were released, (3) the signature of

the custodial parent confirming his or her consent, (4) the

Social Security number of the custodial parent, (5) the date of

the custodial parent’s signature, and (6) the name and the Social




     1
       Temporary regulations are entitled to the same weight as
final regulations. See Peterson Marital Trust v. Commissioner,
102 T.C. 790, 797 (1994), affd. 78 F.3d 795 (2d Cir. 1996); Truck
& Equip. Corp. v. Commissioner, 98 T.C. 141, 149 (1992).
                                - 7 -

Security number of the parent claiming the exemption.      Id. at

190.

        In the present case, petitioner and Ms. Brissett have joint

legal and physical custody of Jacquelynne and Dominic under the

terms of the separation agreement.      However, for purposes of

section 152(e), the parent having custody for a greater portion

of the calendar year–-Ms. Brissett in this case--is deemed to be

the custodial parent.    Petitioner, as the noncustodial parent for

purposes of section 152(e), was not entitled to the claimed

dependency exemptions unless he complied with the provisions of

section 152(e)(2) and the regulations thereunder by attaching to

his return a written declaration or Form 8332 executed by Ms.

Brissett.    Petitioner did not attach such a declaration or Form

8332 to his return, and accordingly, he is not entitled to the

deduction for dependency exemptions for Jacquelynne and Dominic

for the 2000 taxable year.

       Petitioner nevertheless argues that he is current in his

child support obligation and that, under the terms of the

separation agreement, he is entitled to the deduction for

dependency exemptions.    We are not unsympathetic to petitioner’s

position.    However, we are bound by the language of the statute

as it is written and the accompanying regulations, when

consistent therewith.    Michaels v. Commissioner, 87 T.C. 1412,

1417 (1986).    The Internal Revenue Code is clear as to the
                                 - 8 -

precise circumstance in which a noncustodial parent becomes

entitled to a dependency exemption.       See Neal v. Commissioner,

T.C. Memo 1999-97.   Respondent is sustained on this issue.

     To reflect the foregoing,

                                              Decision will be entered

                                         for respondent.
