                  T.C. Summary Opinion 2009-43



                     UNITED STATES TAX COURT



            CHRISTOPHER CHARLES POWERS, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 24625-07S.            Filed March 26, 2009.



     Christopher Charles Powers, pro se.

     Derek P. Richman, for respondent.



     DEAN, Special Trial Judge:   This case was heard pursuant to

the provisions of section 7463 of the Internal Revenue Code

(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 Code in effect for the
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years in issue, and all Rule references are to the Tax Court

Rules of Practice and Procedure.

     Respondent determined deficiencies of $3,875 and $3,543 in

petitioner’s 2004 and 2005 Federal income taxes, respectively.

The issues for decision are whether petitioner is entitled to:

(1) his claimed deduction for unreimbursed employee expenses for

2004; (2) his claimed dependency exemption deduction for 2005;

(3) his claimed child tax credit for 2005; and (4) head of

household filing status for 2005.

                              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.      When the petition was

filed, petitioner resided in Florida.

     During 2004 petitioner worked for the National Association

of Letter Carriers as a union representative.      He traveled from

Key West to West Palm Beach, Florida, handling mediation,

arbitration, and litigation for the union.      His 2004 deduction

for unreimbursed employee expenses related to hotel charges and

transportation expenses that he incurred while using his personal

vehicle for union purposes.

     During 2003 and 2004 petitioner and his former spouse were

in the process of obtaining a divorce.      They entered into a
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settlement agreement (support order)1 that provided that

petitioner was entitled to “child income tax benefits during the

odd numbered years beginning with 2005” if he was current with

his child support obligations.

      Petitioner’s 2005 Form 1040, U.S. Individual Income Tax

Return, was prepared by a certified public accountant (C.P.A.).

For 2005 he claimed a dependency exemption deduction and a child

tax credit for his child, and he filed as a head of household.

He did not attach Form 8332, Release of Claim to Exemption for

Child of Divorced or Separated Parents, to his 2005 Form 1040.

I.   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.    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

credible evidence with respect to the issue and the taxpayer has

satisfied certain conditions.    Sec. 7491(a)(1).   Petitioner has

not alleged that section 7491(a) applies, and he has neither

complied with the substantiation requirements nor maintained all




      1
      In the alternative, petitioner referred to the settlement
agreement as a child support enforcement order, a court order, or
a divorce order.
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required records.   See sec. 7491(a)(2)(A) and (B).    Accordingly,

the burden of proof remains on him.

II.   Unreimbursed Employee Expenses

      Section 162(a) authorizes a deduction for all the ordinary

and necessary expenses paid or incurred during the taxable year

in carrying on any trade or business.     But as a general rule,

deductions are allowed only to the extent that they are

substantiated.   Secs. 274(d) (no deductions are allowed for

gifts, listed property,2 or traveling, entertainment, amusement,

or recreation unless substantiated),3 6001 (taxpayers must keep

records sufficient to establish the amounts of the items required

to be shown on their Federal income tax returns).

      Petitioner admitted that he did not “know where the C.P.A.

came up with” $16,000 in unreimbursed employee expenses, but “I

know it was a couple of thousand.”     He also testified that he did




      2
      The term “listed property” is defined to include passenger
automobiles. Sec. 280F(d)(4)(A)(i).
      3
      Specifically, sec. 274(d) requires taxpayers to
substantiate by adequate records or sufficient evidence to
corroborate the taxpayers’ own testimony: (1) The amount of the
expenditure or use; (2) the time of the expenditure or use; (3)
the place of the expenditure or use; (3) the business purpose of
the expenditure or use; and (4) the business relationship to the
taxpayer of the persons entertained or receiving the gift. See
also sec. 1.274-5T(a) and (b), Temporary Income Tax Regs., 50
Fed. Reg. 46014 (Nov. 6, 1985).
                                   - 5 -

not have any records to substantiate his deductions because they

were “lost during the divorce.”4

       Because petitioner has provided no evidence that meets the

substantiation requirements of sections 274(d) and 6001 and the

regulations thereunder, he is not entitled to his claimed

deduction for unreimbursed employee expenses.         Respondent’s

determination is sustained.

III.       Dependency Exemption Deduction

       Generally, taxpayers may claim dependency exemption

deductions for their dependents.       Sec. 151(c).   The term

“dependent” includes a “qualifying child”.       Sec. 152(a).    A

qualifying child is defined as an individual who:        (1) Bears a

certain relationship to the taxpayer, such as the taxpayer’s

child; (2) has the same principal place of abode as the taxpayer

for more than one-half of the taxable year; (3) meets certain age

requirements; and (4) has not provided over one-half of the

individual’s own support for the taxable year.        Sec. 152(c).

       Section 152(e)(1), in pertinent part, provides a general

rule that limits the dependency exemption deduction as follows:


       4
      Petitioner did not attempt to reconstruct his expenditures.
See Boyd v. Commissioner, 122 T.C. 305, 319-322 (2004); Sanderlin
v. Commissioner, T.C. Memo. 2008-209; sec. 1.274-5T(c)(5),
Temporary Income Tax Regs., 50 Fed. Reg. 46022 (Nov. 6, 1985),
(if a taxpayer can establish that the taxpayer’s failure to
produce an adequate record is due to the loss of the record
through circumstances beyond the taxpayer’s control, the taxpayer
may substantiate a deduction by reasonable reconstruction of the
expenditures).
                                - 6 -

if the child received over one-half of his support during the

calendar year from his parents who are divorced 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 the qualifying

child of the noncustodial parent if certain requirements are met.

The requirements are met if:    (1) The custodial parent signs a

written declaration (in such manner and form as the Secretary may

prescribe) that the custodial parent will not claim the child as

a dependent for the taxable year; and (2) the noncustodial parent

attaches the written declaration to the noncustodial parent’s

return for the taxable year.5   Sec. 152(e)(2).

     The written declaration may be made on a form provided by

the Internal Revenue Service (IRS) or a document that conforms to

its substance.   Miller v. Commissioner, 114 T.C. 184, 190-191

(2000) (citing sec. 1.152-4T(a), Q&A-3, Temporary Income Tax

Regs., 49 Fed. Reg. 34459 (Aug. 31, 1984)); see also Neal v.


     5
      Sec. 152(e)(2) was amended, effective for tax years
beginning after Dec. 31, 2004, to provide that a child could be
the noncustodial parent’s qualifying child if a decree of divorce
provides that the noncustodial parent was entitled to the
dependency exemption deduction for the child or the custodial
parent signed a written declaration (in such manner and form as
the Secretary may prescribe) that such parent would not claim the
child as a dependent for the taxable year. See the Working
Families Tax Relief Act of 2004, Pub. L. 108-311, sec. 201, 118
Stat. 1169. This provision might have afforded petitioner
relief, but it was eliminated by retroactive amendments that
restored the DEFRA waiver requirement of sec. 152(e)(2) for tax
years beginning after Dec. 31, 2004. See Gulf Opportunity Zone
Act of 2005, Pub. L. 109-135, sec. 404, 119 Stat. 2632.
                               - 7 -

Commissioner, T.C. Memo. 1999-97.    The written declaration is

embodied in Form 8332, and it incorporates the requirements of

section 152(e)(2).   Miller v. Commissioner, supra at 190.6

     In Miller v. Commissioner, supra at 191-195, the Court

stated that in order for the noncustodial parent to claim the

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

custodial parent’s release of the dependency exemption by signing

a written declaration to that effect.     Simply attaching a State

court order that was not signed by the custodial parent to the

noncustodial parent’s return does not satisfy the express

requirements of section 152(e)(2).     Id. at 196.   The mere fact

that the State court granted the taxpayer the right to claim the

dependency exemption is immaterial because a State court cannot

determine issues of Federal tax law.     Id. (and cases cited

thereat).

     Petitioner claims that he gave a copy of his support order

to his C.P.A., and the C.P.A. allegedly mailed it to the IRS.7

He provided the Court with only one page of the support order.

The page does not contain his former spouse’s signature, and it



     6
      Form 8332 requires a taxpayer to furnish: (1) The
children’s names and the years for which exemption claims are
released; (2) the custodial parent’s signature and the date
thereof; (3) the custodial parent’s Social Security number; and
(4) the noncustodial parent’s name and Social Security number.
Miller v. Commissioner, 114 T.C. 184, 190 (2000).
     7
      Petitioner did not call the C.P.A. as a witness.
                                - 8 -

merely states that petitioner is entitled to claim “child income

tax benefits” if he satisfies his support obligations.

Petitioner, therefore, has neither proven that the support order

meets the signature requirement of section 152(e)(2)(A), see id.

at 191-196, nor that it otherwise conforms to the substance of

Form 8332, see supra note 6.

      Petitioner submitted a letter from his former spouse to the

Court that acknowledges that they agreed that he was entitled to

“claim child income tax benefits during odd numbers years” and

states that he is current with his child support obligations.

The letter, however, was not attached to petitioner’s 2005 Form

1040, and it does not conform to the substance of Form 8832.    See

sec. 152(e)(2)(B); supra note 6.

      Because petitioner has not proven that he has complied with

the requirements of section 152(e), he is not entitled to his

claimed dependency exemption deduction.   See Miller v.

Commissioner, supra at 197.    Respondent’s determination is

sustained.

IV.   Child Tax Credit

      Section 24(a) provides a credit against income tax for each

qualifying child of a taxpayer (as defined in section 152(c)) who

is under 17 years of age.   A qualifying child is one for whom a

taxpayer may claim a deduction under section 151.   Sec. 24(c)(1).

Because petitioner is not entitled to the dependency exemption
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deduction for his child, he cannot claim a child tax credit for

his child.   Respondent’s determination is sustained.

V.   Head of Household Filing Status

      As relevant here, section 2(b)(1) defines a head of a

household as an unmarried individual who maintains as his home a

household that constitutes for more than one-half of the taxable

year the principal place of abode of the taxpayer’s qualifying

child (as defined in section 152(c) and determined without regard

to section 152(e)) or any other dependent of the taxpayer, if the

taxpayer is entitled to a deduction for the dependent under

section 151 (i.e., a qualifying relative).

      Petitioner has provided no evidence as to whether his child

had the same principal place of abode as petitioner for more than

one-half of the taxable year.   See sec. 151(c)(1)(B); supra p. 5.

Additionally, it is unclear from the record whether his former

spouse also claimed the child as a dependent in 2005 for Federal

income tax purposes.   Where more than one parent claims the child

as a dependent and the child’s parents do not file a joint return

together, then the child is treated as the qualifying child of

the parent with whom the child resided for the longest period of

time during the taxable year or the parent with the highest

adjusted gross income if the child resides with both parents for

the same amount of time during the taxable year.   Sec.

152(c)(4)(B).   Petitioner has provided no evidence as to these
                              - 10 -

issues.   Thus, he has failed to prove that his child was his

qualifying child under section 152(c)(4)(B) rather than his

former spouse’s qualifying child.   Therefore, petitioner is not

entitled to head of household filing status for 2005.

Respondent’s determination is sustained.

     To reflect the foregoing,


                                           Decision will be entered

                                    for respondent.
