                  T.C. Summary Opinion 2003-64



                     UNITED STATES TAX COURT



              KABONGO LEONARD KALUBI, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 11760-02S.               Filed May 28, 2003.


     Kabongo Leonard Kalubi, pro se.

     Brianna J. Basaraba, for respondent.



     POWELL, Special Trial Judge:   This case was heard pursuant

to the provisions of section 74631 of the Internal Revenue Code

in effect at the time the petition was filed.    The decision to be

entered is not reviewable by any other court, and this opinion

should not be cited as authority.

     Respondent determined a deficiency of $3,944 in petitioner’s


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

1999 Federal income tax.    The issues are whether, with respect to

petitioner’s son and daughter, petitioner is entitled to claim

(1) dependency exemption deductions, and (2) an earned income

credit (EIC).   Petitioner resided in Decatur, Georgia, at the

time the petition was filed.

     The facts may be summarized as follows.    Petitioner and his

former wife divorced in 1998.    Petitioner’s former wife was

awarded custody of their two minor children, Mbikay Kabongo (born

1990) and Kapinga Kabongo (born 1992) (collectively, the

children).   The record does not contain either the divorce decree

or the custody decree.    During 1999, petitioner resided in

Decatur, Georgia, and the children resided with petitioner’s

former wife in St. Louis, Missouri.     Petitioner provided $336 of

monthly support for the children.

     In preparing his 1999 Federal income tax return, petitioner

claimed, with respect to the children, two dependency exemption

deductions and the EIC.    Respondent disallowed the dependency

exemption deductions because petitioner did not attach to his

return a written declaration executed by his former wife to waive

her right to the dependency exemptions.    Respondent disallowed

the EIC because the children did not reside with petitioner for

more than 6 months in 1999.
                               - 3 -

Dependency Exemptions

     Petitioner argues that he is entitled to claim dependency

exemption deductions with respect to his children because he has

“been paying child support for them.”   Generally, sections 151

and 152 provide that a taxpayer is entitled to deduct an

exemption for a minor dependent if the taxpayer provides over

half of the support for the minor dependent.    An exception exists

in the case of a minor dependent whose parents are divorced or

separated and together provide over half of the support for the

minor dependent.   Section 152(e)(1) provides that the parent

having custody for a greater portion of the calendar year

(“custodial parent”) generally shall be treated as providing over

half of the support for the minor dependent.2

     A noncustodial parent, however, may be treated as providing

over half of the support for the minor dependent if the

requirements of section 152(e)(2) are satisfied.   Section

152(e)(2) provides that a noncustodial parent is treated as

providing over half of the support if

          (A) the custodial parent signs a written declaration
     * * * that such custodial parent will not claim such child
     as a dependent for any taxable year beginning in such
     calendar year, and




2
   An exception also exists in the case of a multiple support
agreement. Sec. 152(c). Petitioner did not provide any evidence
of a multiple support agreement.
                              - 4 -

          (B) the noncustodial parent attaches such written
     declaration to the noncustodial parent’s return for the
     taxable year beginning during such calendar year.

     The Internal Revenue Service prescribed Form 8332, Release

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

as the appropriate form in which the noncustodial parent may

satisfy the written declaration requirement of section 152(e)(2).

See Miller v. Commissioner, 114 T.C. 184, 190 (2000), affd. on

another ground sub nom. Lovejoy v. Commissioner, 293 F.3d 1208

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

Regs., 49 Fed. Reg. 34459 (Aug. 31, 1984).3   Regardless of the

fact that petitioner paid monthly child support for his children,

petitioner failed to provide a Form 8332 or any other written

declaration to establish that his former wife waived her right to

the dependency exemption deductions.   We hold that petitioner is

not entitled to the dependency exemption deductions.   See

McCarthy v. Commissioner, T.C. Memo. 1995-557; Ferguson v.

Commissioner, T.C. Memo. 1994-114.4




3
   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); see also
LeCroy Research Sys. Corp. v. Commissioner, 751 F.2d 123, 127 (2d
Cir. 1984), revg. on other grounds T.C. Memo. 1984-145.
4
   Sec. 7491(a), concerning burden of proof, has no bearing on
the underlying substantive issues.
                                 - 5 -

Earned Income Credit

     Section 32(a) generally provides eligible individuals with

an EIC against their income tax liability.       An “eligible

individual” is defined as an individual who has a “qualifying

child” for the taxable year.   Sec. 32(c)(1)(A)(i).        As relevant

herein, a “qualifying child” must satisfy a residency test.        Sec.

32(c)(3)(A)(ii) provides that the “qualifying child” must have

“the same principal place of abode as the taxpayer for more than

one-half” of the taxable year.

     At trial, petitioner admitted that the children did not

reside with him for more than half of the 1999 year.        We conclude

that petitioner is not entitled to an EIC.       See Briggsdaniels v.

Commissioner, T.C. Memo. 2001-321; Brignac v. Commissioner, T.C.

Memo. 1999-387.

     Reviewed and adopted as the report of the Small Tax Case

Division.

                                              Decision will be entered

                                         for respondent.
