                   T.C. Summary Opinion 2005-89



                     UNITED STATES TAX COURT



         WALTER D. AND PAULEANA L. MACE, Petitioners v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 20992-03S.               Filed July 14, 2005.



     Walter D. and Pauleana L. Mace, pro sese.

     Edward L. Walter, 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.


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

     “Petitioner” refers only to Walter D. Mace.   Respondent

determined a deficiency of $1,397 in petitioners’ 2001 Federal

income tax.   The issue is whether petitioners are entitled to a

section 151 dependency exemption deduction and a section 24 child

tax credit for petitioner’s minor child.   At the time the

petition was filed petitioners resided in Erlanger, Kentucky.

                            Background

     Petitioner and Ella Jo Willis (custodial parent) are the

biological parents of a minor child who was born in 1991.

Petitioner and the custodial parent have never been married to

each other, and they lived apart at all times during 2001.    By

order of the Hamilton County Juvenile Court (support order) dated

May 25, 1999, petitioner was ordered to pay the custodial parent

child support.

     The support order states that “every year” petitioner is

entitled to claim the child as a dependent for tax purposes if

the child support payments for the year in which the child will

be claimed as a dependent are current in full.   The support order

also provides that the custodial parent “must take whatever

action necessary to enable this claim.”    Petitioner was current

in full with his child support obligations for the year at issue.

     Petitioners claimed a dependency exemption deduction and a

child tax credit for petitioner’s minor child on their jointly

filed Form 1040, U.S. Individual Income Tax Return, for the
                                 - 3 -

taxable year 2001.2    Petitioners did not attach any statement

from the custodial parent or an Internal Revenue Service form

regarding petitioner’s entitlement to the dependency exemption

deduction to their return.    Respondent notified petitioners that

their 2001 return was under examination due to the claimed

dependency exemption deduction and child tax credit.    The

custodial parent also claimed the child as a dependent when she

filed her return for the 2001 taxable year.

     Petitioner filed a motion in Hamilton County Juvenile Court

to have the custodial parent found in contempt of the State court

support order entitling petitioner to the dependency exemption

deduction, and that she be ordered to pay petitioner the money

due resulting from her actions.    On May 11, 2004, the State court

did not find the custodial parent to be in contempt, but ordered

her to file an amended return and not claim the child as a

dependent.    At the time of trial, it was not known whether the

custodial parent had complied with the May 11, 2004, order and in

fact had filed an amended return.




     2
             The record does not show when petitioners were married.
                               - 4 -

                            Discussion3

A.   Dependency Exemption Deduction

     Sections 151 and 152 provide that a taxpayer is entitled to

deduct an exemption for a dependent if the taxpayer provides over

half of the support for the dependent.    Under section 152(e)(1),

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

separated under a written agreement, or who have lived apart at

all times during the last 6 months of the calender year, and

together provide over half of the support for the minor

dependent, 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.

Section 152(e)(1) applies to parents who have never married each

other, and therefore it applies in this case.    King v.

Commissioner, 121 T.C. 245, 251 (2003).

     Petitioner is not the custodial parent and is not entitled

to the dependency exemption deduction under section 152(e)(1).    A

noncustodial parent may be entitled to the exemption if one of

three exceptions in section 152(e) is satisfied.   The only

exception relevant to this case is contained in section

152(e)(2).   Section 152(e)(2) provides that a child shall be

treated as having received over half of his or her support from


     3
          We decide the issue in this case without regard to the
burden of proof. See Higbee v. Commissioner, 116 T.C. 438
(2001).
                                 - 5 -

the noncustodial parent if:

           (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.

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

Fed. Reg. 34459 (Aug. 31, 1984),4 further provides:

     The written declaration may be made on a form to be
     provided by the Service for this purpose. * * *

     Pursuant to the regulations, the Internal Revenue Service

issued Form 8332, Release of Claim to Exemption for Child of

Divorced or Separated Parents, as a way to satisfy the written

declaration requirement of section 152(e)(2).    Form 8332

instructs the taxpayer to provide (1) the names of the children

for whom exemption claims were released, (2) the years the claims

are released, (3) the signature of the custodial parent to

confirm their consent, (4) the Social Security number of the

custodial parent, (5) the date of the custodial parent’s

signature, and (6) the name and Social Security number of the

parent claiming the exemption.    If Form 8332 is not used, a

statement conforming to the substance of Form 8332 must be used.


     4
          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).
                               - 6 -

See Miller v. Commissioner, 114 T.C. 184 (2000); sec. 1.152-

4T(a), Q&A-3, Temporary Income Tax Regs., supra.5

     Petitioners did not attach a written declaration, Internal

Revenue Service form, or other statement signed by the custodial

parent to their return.   See sec. 152(e)(2)(A) and (B).

Petitioners, therefore, did not establish entitlement to the

dependency exemption deduction for the year in question.   See

Paulson v. Commissioner, T.C. Memo. 1996-560.

     Although the support order provides that petitioner is

entitled to the dependency exemption deduction, it cannot by its

own terms determine issues of Federal tax law.   Commissioner v.

Tower, 327 U.S. 280 (1946); Kenfield v. United States, 783 F.2d

966 (10th Cir. 1986); Neal v. Commissioner, T.C. Memo. 1999-97;


     5
          Petitioner Pauleana L. Mace testified that petitioners
were told by the Internal Revenue Service that as a noncustodial
parent who was never married to the custodial parent petitioner
could not use Form 8332, but instead needed a Form 2120, Multiple
Support Declaration. Form 2120 is used for the claiming of
dependency exemptions where multiple taxpayers support a
dependent and where the taxpayer contributed over 10 percent of
the support of the claimed dependent. Sec. 152(c)(3). Sec.
152(c)(4) requires a written declaration for each person (other
than the taxpayer) who contributed over 10 percent of such
support that he or she will not claim the individual as a
dependent for the same taxable year. Sec. 1.152-3(c), Income Tax
Regs., provides that the written declaration may be made on Form
2120 or in a similar manner.
     In light of this Court’s holding in King v. Commissioner,
121 T.C. 245, 250-251 (2003), a properly executed Form 8332 can
constitute the waiver of a custodial parent’s claim to the
dependency exemption deduction even where the parents were never
married to each other. Which form should have been used is not
at issue, as no form or statement signed by the custodial parent
was attached to petitioners’ return when they filed it.
                               - 7 -

Nieto v. Commissioner, T.C. Memo. 1992-296.     Petitioners’ remedy

is to continue to pursue the custodial parent’s compliance with

the support order in the State court, and any and all other

remedies that may be pursued against the custodial parent to make

petitioners whole.

B.   Child Tax Credit

     Section 24(a) provides that a taxpayer may claim a credit

for “each qualifying child”.   As relevant here, a qualifying

child is defined as an individual if “the taxpayer is allowed a

deduction under section 151 with respect to such individual for

the taxable year”.   Sec. 24(c)(1)(A).    Petitioner did not

establish entitlement to a dependency exemption deduction under

section 151; therefore, he is not entitled to claim the child tax

credit.

     Reviewed and adopted as the report of the Small Tax Case

Division.

                                            Decision will be entered

                                       for respondent.
