                 T.C. Summary Opinion 2008-113



                     UNITED STATES TAX COURT



                   FRED HOFFMAN, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 23275-06S.              Filed September 3, 2008.



     Fred Hoffman, pro se.

     Frederick C. Mutter, for respondent.



     THORNTON, 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 any other court, and




     1
       Unless otherwise indicated, section references are to the
Internal Revenue Code of 1986, in effect for the year in issue.
                               - 2 -

this opinion shall not be treated as precedent for any other

case.

     Respondent determined a $5,760 deficiency in petitioner’s

2004 Federal income tax.   The issues for decision are, with

respect to petitioner’s 2004 taxable year:    (1) Whether

petitioner is entitled to claim dependency exemption deductions

for his three eldest children; (2) whether petitioner is entitled

to claim the child tax credit; and (3) whether petitioner is

entitled to head of household filing status.

                             Background

     The parties have stipulated some facts, which we incorporate

herein.   When he petitioned this Court, petitioner resided in New

York.

     On January 28, 2002, petitioner and his wife, Alice Ann

Hoffman (Alice), divorced.   They had five children from their

marriage.   The divorce decree stated:    “The Husband will take the

three oldest children as deductions on his Federal and State

income tax returns and the wife will take the two youngest

children as deductions on her Federal and State returns.”

     After the divorce, all five children lived with Alice,

although petitioner regularly drove them to school.

     On his 2004 Form 1040, U.S. Individual Income Tax Return,

petitioner claimed dependency exemption deductions for his three

eldest children; he also claimed the child tax credit and filed
                               - 3 -

as a head of household.   Petitioner did not include with his

return a Form 8332, Release of Claim to Exemption for Child of

Divorced or Separated Parents, or a copy of his divorce decree.

On her 2004 Federal tax return Alice claimed dependency exemption

deductions for all five children.

     By notice of deficiency, respondent disallowed petitioner’s

dependency exemption deductions and child tax credit and

determined petitioner’s filing status to be single rather than

head of household.

                            Discussion

1. Dependency Exemption

     A taxpayer generally may deduct an exemption amount for each

dependent child under 19 years of age.    Sec. 151(c)(1)(B)(i).   To

be entitled to claim a child as a dependent, the taxpayer

generally must provide over one-half of the child’s support.

Sec. 152(a).   If the child’s parents are divorced or separated,

the child will generally be treated as receiving over one-half of

his or her support from the custodial parent; i.e., the parent

having custody for a greater portion of the calendar year.    Sec.

152(e)(1).   As an exception to this general rule, the

noncustodial parent is treated as providing over one-half of the

support if the custodial parent releases his or her claim to the

exemption for the year.   Sec. 152(e).   This exception applies

only if:
                               - 4 -

          (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.
     [Sec. 152(e)(2)(A) and (B).]

     Under the regulations, to claim an exemption for a dependent

child a noncustodial parent must attach to his or her income tax

return 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.”   Sec. 1.152-4T(a),

Q&A-3, Temporary Income Tax Regs., 49 Fed. Reg. 34459 (Aug. 31,

1984).   The custodial parent may make this written declaration on

Form 8332.   See Miller v. Commissioner, 114 T.C. 184, 190 (2000),

affd. on other grounds sub nom. Lovejoy v. Commissioner, 293 F.3d

1208 (10th Cir. 2002); sec. 1.152-4T(a), Q&A-3, Temporary Income

Tax Regs., supra.   Form 8332 requires, among other things, that

the custodial parent sign a statement agreeing not to claim the

exemption for the child or children named on the form for the tax

years specified on the form.   A written declaration that is made

other than on a Form 8332 must “conform to the substance of such

form.”   Sec. 1.152-4T(a), Q&A-3, Temporary Income Tax Regs.,

supra.

     Because all five children lived with Alice in 2004, she was

the custodial parent.   Petitioner did not attach to his return
                                 - 5 -

Form 8332 or any other written statement which complied with the

requirements of section 152(e)(2) and the temporary regulations

thereunder.    Accordingly, petitioner is not entitled to

dependency exemption deductions for any of his children for 2004.

2. Child Tax Credit

     Section 24(a) allows a tax credit for each “qualifying

child” of a taxpayer.    To be a qualifying child, an

individual must, among other things, qualify as the taxpayer’s

dependent.    Sec. 24(c).   As stated above, none of petitioner’s

children qualify as his dependent.       Accordingly, petitioner is

not entitled to the child tax credit for 2004.

3. Head of Household Filing Status

     Section 1(b) grants a special tax rate for any individual

who qualifies for filing as a head of household.       As relevant to

this case, section 2(b)(1)(A)(i) provides that an individual will

be considered a head of household only if he maintains as his

home a household that constitutes the principal place of abode of

his child for more than one-half of the taxable year.

     Because all five children lived with Alice throughout 2004,

petitioner’s home did not constitute the principal place of abode

for any of his children for more than one-half of the year.

Petitioner is not entitled to head of household filing status for

2004.
                         - 6 -

In the light of the foregoing,


                                      Decision will be entered

                                 for respondent.
