                         T.C. Memo. 2009-297



                       UNITED STATES TAX COURT



                 MARY E. BJELLAND, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent

             CARL E. KNOCHELMANN, JR., Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket Nos. 20407-07, 21208-07.     Filed December 22, 2009.



     Mary E. Bjelland, pro se.

     Carl E. Knochelmann, Jr., pro se.

     Emily J. Giometti, for respondent.



                         MEMORANDUM OPINION


     HALPERN, Judge:    Respondent determined deficiencies of

$1,474 and $2,092 in the 2004 Federal income taxes of petitioners

Mary E. Bjelland (Ms. Bjelland) and Carl E. Knochelmann (Mr.
                               - 2 -

Knochelmann), respectively.   Both have claimed their son (EJK) as

a dependent on their separately filed 2004 Federal income tax

returns.

     The issues in these cases turn mainly on which parent may

claim EJK as a dependent.   We must decide which parent, because

of him, is entitled to a dependency exemption deduction, a child

care tax credit, and a child tax credit.   We must also decide

whether Mr. Knochelmann is entitled to head of household filing

status and an additional child tax credit.1

     The parties submitted these cases fully stipulated under

Rule 122.   The stipulated facts are so found, and the stipulation

of facts, with accompanying exhibits, is incorporated herein by

this reference.

     Unless otherwise stated, section references are to the

Internal Revenue Code in effect for 2004, and Rule references are

to the Tax Court Rules of Practice and Procedure.2




     1
      An “additional child tax credit” is the portion of any
credits that is refunded under sec. 24(d). See infra note 3.
     2
      This sentence is of particular importance in these cases
because both Mr. Knochelmann and respondent appear to rely at
times on provisions in versions of the Internal Revenue Code and
the regulations thereunder that are inapplicable to 2004. See
infra note 5.
                                - 3 -

                              Background

     Both Ms. Bjelland and Mr. Knochelmann resided in Kentucky

when they filed their respective petitions.

     Ms. Bjelland and Mr. Knochelmann each timely filed a 2004

Federal income tax return.    On her return, Ms. Bjelland claimed

two dependency exemption deductions (only one of which is in

issue), a child care tax credit, and a child tax credit.    On his

return, Mr. Knochelmann claimed head of household filing status,

one dependency exemption deduction, a child care tax credit, a

child tax credit, and an additional child tax credit.

     Petitioners, who have never been married to each other,

share joint custody of EJK.    During 2004, pursuant to a court-

mandated parenting plan, petitioners generally shared physical

custody of EJK on the following biweekly schedule.    During the

first week, Mr. Knochelmann had custody from 8 a.m. Wednesday

until 5:30 p.m. Friday; during the second week, he had custody

from 8 a.m. Thursday until 5:30 p.m. Monday.    Ms. Bjelland had

custody at all other times; i.e., during the first week from 5:30

p.m. Monday through 8 a.m. Wednesday and from 5:30 p.m. Friday of

the first week through 8 a.m. Thursday of the second week.

Holidays, birthdays, and vacations were shared according to an

alternative schedule.   Disregarding the alternative schedule, Ms.

Bjelland had physical custody of EJK for 8 nights and 173 hours

during each 2004 biweekly period, and Mr. Knochelmann had
                                 - 4 -

physical custody of him for 6 nights and 163 hours during each

such period.

                              Discussion

I.   Relevant Provisions of the Internal Revenue Code

      Section 151 allows deductions for personal exemptions.      An

unmarried individual is entitled to a personal exemption for

himself or herself and an additional exemption for each

dependent.   See sec. 151(c).    Under section 152(a), the term

“dependent” includes a son or daughter of the taxpayer “over half

of whose support, for the calendar year * * * was received from

the taxpayer”.   Section 152(e) defines “support” for a child of

divorced or otherwise separated parents.     In pertinent part,

section 152(e) provides:

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

                (1) Custodial parent gets exemption.
           * * * if--

                      (A) a child * * * receives over half of his
                 support during the calendar year from his
                 parents–-

                   *    *    *     *     *   *    *

                            (iii) who live apart at all times during
                       the last 6 months of the calendar year, and

                      (B) such child is in the custody of one or
                 both of his parents for more than one-half of the
                 calendar year,

           such 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
                               - 5 -

          greater portion of the calendar year (hereinafter * * *
          referred to as the “custodial parent”).

     If a taxpayer maintains a household that includes “a

dependent of the taxpayer who is under the age of 13 and with

respect to whom the taxpayer is entitled to a deduction under

section 151(c)”, sec. 21(b)(1)(A), then section 21(a) allows the

taxpayer a tax credit for certain employment-related expenses.

Section 24(a) allows a taxpayer a $1,000 tax credit for each

“qualifying child”.   That term includes a child of the taxpayer

under the age of 17 for whom “the taxpayer is allowed a deduction

under section 151”.   Sec. 24(c)(1).3

     Section 1(b) applies an advantageous tax rate to the taxable

income of unmarried individuals who qualify as “heads of

households”.   Compare sec. 1(b) with sec. 1(c) (rate generally

applicable to taxable income of unmarried individuals).    Under

section 2(b)(1), the term “head of a household” includes an

individual unmarried at the end of the taxable year who, among

other things, “maintains as his home a household which

constitutes for more than one-half of such taxable year the



     3
      The total credits allowed under sec. 24(a) generally cannot
be more than the taxpayer’s tax liability. See sec. 24(b)(3). A
portion of any credits disallowed because they exceed the
taxpayer’s tax liability may be refunded to the taxpayer under
sec. 24(d). The refundable amount under sec. 24(d) is referred
to as an “additional child tax credit”. E.g., Richmond v.
Commissioner, T.C. Memo. 2009-207.
                                   - 6 -

principal place of abode, as a member of such household, of * * *

a son * * * of the taxpayer”.

II.    Principal Question

       To resolve most of the questions these cases present, we

must decide, within the meaning of section 152, of which

petitioner EJK was a dependent for 2004.       That turns on which

petitioner is treated as providing more than half of EJK’s

support for 2004, and that turns on which petitioner had custody

of EJK for a greater portion of 2004.       In other words, we must

decide for 2004 which petitioner was his custodial parent within

the meaning of section 152(e)(1).      Mr. Knochelmann’s claim to

head of household filing status turns on the similar question of

whether his home was EJK’s principal place of abode for more than

half of 2004.

III.    Arguments of the Parties

       A.   Mr. Knochelmann’s Arguments

       Mr. Knochelmann argues that he is entitled to claim EJK as

his dependent for 2004 because he provided more than half of

EJK’s support for that year.     He adds:    “Any analysis of 26 USC

151, 152 that does not result in the parent who provided more

than half of the support for a minor child as being entitled to

claim him as a dependent would violate due process (absent an

agreement to the contrary).”
                                    - 7 -

     Moreover, Mr. Knochelmann argues that he is entitled to

claim EJK as his dependent for 2004 because he is the parent with

whom EJK “resided for the longest period of time during” that

year.     He reaches his conclusion by counting only EJK’s waking

hours because, according to him, that is when the cost to support

EJK was incurred.4

     B.     Ms. Bjelland’s Arguments

     Ms. Bjelland argues that she is entitled to claim EJK as her

dependent for 2004 because EJK “lives with her for the greater

part of the year.”

     C.     Respondent’s Argument

     Respondent argues simply:

          Petitioner Bjelland had custody of * * * [EJK] for
     more hours * * * during 2004 than did petitioner
     Knochelmann. Petitioner Bjelland therefore qualifies
     as the custodial parent for 2004, as she had custody of
     * * * [EJK] for a slightly longer period of time than
     did petitioner Knochelmann.


     4
      Mr. Knochelmann concedes that Ms. Bjelland had custody of
EJK for both more hours and “more night time” during 2004 than he
did. He proposes that we find that he had custody of EJK for
both “more days” and “more day time” during 2004 than she did.
He argues:

     The actual hours of the day Petitioner Knochelmann has
     EJK are during the daytime which is the cost bearing
     time of day. The time unit to measure which Petitioner
     has EJK the majority of time should be “days”. Any
     other unit of time would mask the support cost for each
     Petitioner and would violate due process since there
     would not be any rational basis for any other time unit
     in this case.
                               - 8 -

IV.   Discussion

      Section 152, as it was in effect in 2004,5 controls whether

EJK was for that year Mr. Knochelmann’s dependent or Ms.

Bjelland’s dependent.   We need not determine whether Mr.

Knochelmann in fact provided most of EJK’s support for 2004

because the actual support test in section 152(a) gives way to

the deemed support test in section 152(e) in the case of certain

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

the year (including parents who have never married each other,

see King v. Commissioner, 121 T.C. 245, 251 (2003)).     The record

clearly shows that petitioners did not live together during the

last 6 months of 2004 and, for 2004, together met the joint

support and custody tests of section 152(e).   For that reason,

under section 152(e)(1), the custodial parent is the parent

“having custody for a greater portion of the calendar year”

notwithstanding that the other parent may have contributed more

to the child’s support than did the custodial parent.6

      5
      Both Mr. Knochelmann and respondent appear to rely at times
on provisions in versions of sec. 152 and the regulations
thereunder that are inapplicable to 2004. We do not discuss
those arguments.
      6
      Mr. Knochelmann argues that, because he provided more than
half of EJK’s support, “any analysis” of the law that deprives
him of a dependency exemption deduction for EJK is (without his
consent) a violation of due process. His argument has no merit.
See Harris v. Commissioner, T.C. Memo. 2007-239, in which we
addressed a similar argument and stated:
                                                   (continued...)
                               - 9 -

     For purposes of section 152(e)(1), for parents who have

joint custody of a child, the custodial parent is the parent with

“physical custody” for the greater portion of the calendar year.

E.g., Dail v. Commissioner, T.C. Memo. 2003-211; see sec. 1.152-

4(b), Income Tax Regs.   Neither the statute nor the regulations

prescribe how to quantify the time each parent has physical

custody; rather, the facts of each case determine the appropriate

method.   For example, we have considered both the number of

nights and the number of hours a child spends with each parent.

See, e.g., McCullar v. Commissioner, T.C. Memo. 2003-272 n.2

(“For periods in which the child is regularly attending school,

we believe it is appropriate to quantify time spent with a parent

through the number of nights spent together.”); Dail v.

Commissioner, supra (mother was custodial parent because she had

physical custody each week from 6 p.m. Thursday until 8 a.m.

Monday and for 2 to 3 weeks during the summer); Valarian v.

Commissioner, T.C. Memo. 1996-511 (father was not custodial



     6
      (...continued)
     Because section 152(e) eases the administrative burden
     of the IRS and thereby advances enforcement of the
     statute in a rational way, it furthers a legitimate
     congressional purpose. Knight v. Commissioner, * * *
     [T.C. Memo. 1992-710, affd. without published opinion
     29 F.3d 632 (9th Cir. 1994)]. Therefore, section
     152(e) does not violate the Due Process Clause of the
     Fifth Amendment to the Constitution of the United
     States. Id. * * *
                              - 10 -

parent because children resided with mother and spent

approximately 30 hours a week with father).

     Ms. Bjelland had physical custody of EJK for the greater

portion of 2004 measured either by the number of hours or the

number of nights he spent with her.    Mr. Knochelmann’s proposed

“waking hours” method is unworkable and its underlying rationale

is unpersuasive.   There is no objective way to allocate the costs

associated with a dependent to any particular hour.   Moreover, we

fail to see how costs such as rent and utilities, just to name a

few, cease accruing on behalf of a dependent simply because he is

asleep.   For 2004, we find that Ms. Bjelland was the custodial

parent of EJK.

     On that ground, we further find that, for 2004, EJK was Ms.

Bjelland’s dependent.   For that reason, she is entitled to claim

the dependency exemption deduction, the child care tax credit,

and the child tax credit.   Mr. Knochelmann is not entitled to any

dependency exemption deduction, child care tax credit, or child

tax credit.   Moreover, given the similarity between the temporal

requirements for head of household filing status and for

custodial parent status, we find that he does not qualify as a

head of household under section 2(b)(1).


                                       Decision will be entered for

                               petitioner in docket No. 20407-07

                               and for respondent in docket No.

                               21208-07.
