                        T.C. Memo. 2003-134



                      UNITED STATES TAX COURT



     MICHAEL KEVIN & VICKIE P. BOLTINGHOUSE, Petitioners v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 9063-01.               Filed May 13, 2003.



     Michael K. Boltinghouse and Vickie P. Boltinghouse, pro se.

     James R. Rich, for respondent.



                        MEMORANDUM OPINION

     DINAN, Special Trial Judge:   Respondent determined a

deficiency in petitioners’ Federal income tax of $805 for the

taxable year 1998.   Unless otherwise indicated, section

references are to the Internal Revenue Code in effect for the

year in issue.
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     The sole issue for decision is whether petitioners are

entitled to a dependency exemption deduction for a daughter of

petitioner Michael Kevin Boltinghouse (petitioner).    If

petitioners are so entitled, respondent concedes that petitioners

also are entitled to a child tax credit for her.1

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

The stipulations of fact and the attached exhibits are

incorporated herein by this reference.   Petitioners resided in

Durham, North Carolina, on the date the petition was filed in

this case.

     Petitioner and his former wife, Lisa Rogers, entered into a

separation agreement prior to the finalization of their divorce

in 1991.   The agreement, a three page document, was signed by

both parties and was dated April 1, 1990.     The agreement provided

that Ms. Rogers was to have custody of both of their children,

Brandi and Brittany.   It further provided:




     1
      Petitioners submitted an amended return to the Internal
Revenue Service after the issuance of the statutory notice of
deficiency in this case. In the amended return, in various
papers filed with this Court, and at trial, petitioners argue
that they have zero Federal tax liability for the year in issue
(and that they made an overpayment for that year) based upon
frivolous arguments which do little more than recite law which is
irrelevant, taken completely out of context, or otherwise
misapplied. “We perceive no need to refute these arguments with
somber reasoning and copious citation of precedent; to do so
might suggest that these arguments have some colorable merit.”
Crain v. Commissioner, 737 F.2d 1417 (5th Cir. 1984), affg. an
Order of this Court.
                                - 3 -

          We agree that I [petitioner] will claim Brandi and Lisa
     will claim Brittany as dependents on our separate [sic] tax
     returns. I agree Lisa can claim all interest on the house
     on her tax return. Pending when the divorce is final, we
     agree to file a joint tax return for 1990 and possibly 1991.
     If a refund is due, Lisa will reeive [sic] 70% and Iwill
     [sic] receive 30%. If a payment is due we agree to split
     the cost 50-50.

At the time that the agreement was signed, both petitioner and

Ms. Rogers intended that the provision regarding the dependency

exemption deductions would apply until the children were either

18 years old or, if the children were enrolled as full-time

students, 24 years old.   The agreement also provided details

concerning such matters as the division of marital property and

the payment of child support.

     Petitioner and Ms. Rogers were divorced pursuant to a final

decree executed by the Family Court of the State of Delaware,

Sussex County, on February 5, 1991.     The decree did not

incorporate the separation agreement, nor did it provide any

details regarding such matters as property settlement, custody of

the children, payment of child support, or entitlement to the

dependency exemption deductions.   The decree referenced only an

Order of the Master which had reflected the minimal findings

necessary for a divorce under Delaware law.

     Petitioner and his current wife, petitioner Vickie P.

Boltinghouse, filed a joint Federal income tax return for taxable

year 1998.   On their return, they claimed a single dependency

exemption deduction and child tax credit for Brandi.     They
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attached to their return a copy of the signed separation

agreement between petitioner and Ms. Rogers.    In the statutory

notice of deficiency, respondent disallowed the dependency

exemption deduction and child tax credit.    The notice stated:

     The 1/90 separation agreement did contain a provision
     entitling you to claim Brandi as a dependent exemption on
     your tax return with no conditions attached. However, we
     are unable to determine from the one page divorce decree
     that the agreement has been incorporated as part of the
     final divorce agreement/settlement. We require verification
     that the separation agreement has been filed with the
     divorce court and entered as part of your final divorce
     agreement.

     Generally, a deduction is allowed for each dependent of a

taxpayer.   Sec. 151(a), (c)(1).   Subject to exceptions and

limitations not applicable here, a child of a taxpayer is a

dependent of the taxpayer only if the taxpayer provides over half

of the child’s support for the taxable year.    Sec. 152(a).   A

special rule applies to taxpayer-parents who are divorced, who

are separated, or who live apart from their spouses for at least

the last 6 months of the calendar year, but who have custody of

the child for more than half of the year.    Sec. 152(e)(1).   Under

this rule, the parent with custody of the child for the greater

portion of the year (the “custodial parent”) generally is treated

as having provided over half of the child’s support, regardless

of which parent actually provided the support.    Id.   One

exception to this special rule exists which entitles the

noncustodial parent to the dependency exemption deduction.     Sec.
                                 - 5 -

152(e)(2).   For the exception to apply, the custodial parent must

sign a written declaration releasing his or her claim to the

deduction, and the noncustodial parent must attach the

declaration to his or her tax return.     Id.   A written declaration

releasing a taxpayer’s claim to a dependency exemption deduction

may apply to one year, a set number of years, or all future

years.   Sec. 1.152-4T(a) Q&A-4, Temporary Income Tax Regs., 49

Fed. Reg. 34459 (Aug. 31, 1984).

     Language in a divorce decree purportedly giving a taxpayer

the right to an exemption deduction does not entitle the taxpayer

to the deduction in the absence of the signed written declaration

required by section 152(e)(2).     Miller v. Commissioner, 114 T.C.

184 (2000), affd. on another ground sub nom. Lovejoy v.

Commissioner, 293 F.3d 1208 (10th Cir. 2002).     To meet the

requirements of section 152(e)(2), the written declaration, if

not made on the official form provided by the Internal Revenue

Service, “shall conform to the substance of such form.”     Sec.

1.152-4T(a) Q&A-3, Temporary Income Tax Regs., 49 Fed. Reg. 34459

(Aug. 31, 1984).   The form provided by the Service, Form 8332,2

calls for the following information:     The name of the child or

children; the applicable tax year or years; the custodial

parent’s signature and the date of signature; the custodial


     2
      The Court takes judicial notice of Form 8332, Release of
Claim to Exemption for Child of Divorced or Separated Parents,
available from the IRS.
                               - 6 -

parent’s Social Security number; the noncustodial parent’s name;

and the noncustodial parent’s Social Security number.

     Petitioners argue that attaching the copy of the signed

separation agreement to their return met the requirements of

section 152(e)(2).   Respondent argues that the agreement does not

meet the requirements of that section because (1) as stated in

the notice of deficiency, the agreement was not incorporated into

the final divorce decree, and (2) the agreement does not conform

to the substance of Form 8332 because it does not reflect (a) the

years for which the dependency exemption deductions were to be

released and (b) the Social Security numbers of petitioner and

Ms. Rogers.

     We agree with petitioners.   First, there is no requirement

in section 152(e)(2) or the regulations thereunder that a

spouse’s waiver of her claim to a dependency exemption deduction

be incorporated into a divorce decree to be effective.    Such a

requirement would make Form 8332 itself ineffective on its own.

Furthermore, a separation agreement creates binding contractual

obligations under the laws of the State of Delaware.     Harry M.P.

v. Nina M.P., 437 A.2d 158 (Del. 1981).   Such contractual

obligations do not cease upon the entry of a divorce decree,

Heinsohn v. Chandler, 2 A.2d 120 (Del. Ch. 1938), and whether or

not the agreement is merged or incorporated into the decree

generally does not affect the contractual obligations under the
                                - 7 -

agreement, Rockwell v. Rockwell, 681 A.2d 1017 (Del. 1996); Solis

v. Tea, 468 A.2d 1276 (Del. 1983).      Respondent has not argued,

and nothing in the record indicates, that the separation

agreement was invalid in any respect.

     Second, we find that the separation agreement conforms to

the substance of Form 8332.    The agreement provided that

petitioner was unconditionally entitled to the dependency

exemption for Brandi, and it was signed and dated by Ms. Rogers,

Brandi’s custodial parent.    The language of the agreement, which

referred to the separate returns of petitioner and Ms. Rogers as

well as to joint returns to be filed no later than 1991,

indicates that the allocation of the dependency exemption

deductions was to apply to all returns filed after the divorce

had been finalized.    Thus, although the agreement did not

explicitly state each and every taxable year to which it was to

apply, we find that it unambiguously stated that it was to apply

to all future years, which is permissible pursuant to section

1.152-4T(a) Q&A-4, Temporary Income Tax Regs., 49 Fed. Reg. 34459

(Aug. 31, 1984).    We note that, in the notice of deficiency,

respondent did not challenge the language of the agreement but

questioned only whether the agreement had been incorporated into

a divorce decree:    The notice stated that the “separation

agreement did contain a provision entitling you to claim Brandi

as a dependent exemption on your tax return with no conditions
                                - 8 -

attached.”   No issue concerning the applicable tax year was

raised in the notice.

     The present case can be distinguished from our opinions in

Cafarelli v. Commissioner, T.C. Memo. 1994-265, and Loffer v.

Commissioner, T.C. Memo. 2002-298.      In Cafarelli, the taxpayer, a

custodial parent, had completed a Form 8332 which was attached to

the noncustodial parent’s 1989 return.     The form was completed in

such a way that it applied to “ALL FUTURE YEARS”.     It was signed

and dated January 5, 1990, but it did not designate the first

year in which the release was to be applicable.     This Court found

that the form was not a “written declaration” under section

152(e)(2) with respect to the year 1989.     We based this finding

on the ambiguity created by the form’s failure to indicate that

it was to apply to the year 1989, and the fact that the portion

of the form designated to apply to the “Current Year” was not

completed by the taxpayer.   Thus, to have applied the form to

1989 would have contradicted the terms appearing on the face of

the form:    The form was signed in 1990 and indicated that it was

to apply to “ALL FUTURE YEARS”.

     In Loffer, the alleged “written declaration”--a signed

divorce decree--created an ambiguity as to what taxable years

were applicable by limiting the entitlement to the deduction to

“so long as there are two children who can be claimed.”

Furthermore, the decree did not state the name of the dependent
                               - 9 -

child, and it required the parties’ execution of the appropriate

Internal Revenue Service documentation in order to entitle the

taxpayer to the dependency exemption deduction.   This

documentation was not executed pursuant to the decree.

     No such ambiguity exists in the present case.   The

separation agreement states that petitioner was entitled to the

dependency exemption deduction when petitioner and Ms. Rogers

started filing separate returns.   This requirement does not cause

any ambiguity because it is clear from petitioner’s return that

he was filing separately from Ms. Rogers.

    Finally, respondent’s assertion that the lack of Social

Security numbers causes the declaration to be ineffective is

without merit.   The Social Security number of petitioner, the

noncustodial parent, appears elsewhere on the return; its

presence on the written release is superfluous.   This Court has

held that the omission of the custodial parent’s Social Security

number from a completed Form 8332 does not invalidate the release

effected by that form.   Bramante v. Commissioner, T.C. Memo.

2002-228.   Accordingly, the presence of Ms. Rogers’ Social

Security number is not required for the separation agreement to

conform to the substance of Form 8332.

     The requirements of section 152(e)(2) have been met, and

petitioners therefore are entitled to the dependency exemption

deduction claimed on their return for Brandi.
                        - 10 -

To reflect the foregoing,

                                 Decision will be entered

                            for petitioners.
