                       T.C. Memo. 1998-409



                     UNITED STATES TAX COURT


               BONNIE A. BROUGHTON, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent


     Docket No. 22996-97.                Filed November 13, 1998.


     Bonnie A. Broughton, pro se.

     Mary T. Klaasen, for respondent.

                       MEMORANDUM OPINION

     POWELL, Special Trial Judge:   This case was assigned

pursuant to section 7443A(b)(3) and Rules 180, 181, and 182.1

     Respondent determined deficiencies in petitioner's Federal

income taxes for the taxable years 1994 and 1995 in the

respective amounts of $735 and $752.




     1
         Section references are to the Internal Revenue Code in
effect during the years at issue, and Rule references are to the
Tax Court Rules of Practice and Procedure.
                                - 2 -

     The sole issue is whether petitioner is entitled to claim

two dependency exemptions for her children.      Petitioner resided

in Boise, Idaho, at the time she filed her petition with this

Court.

                             Background

     The facts may be summarized as follows.      Prior to 1984,

petitioner was married to Gary Broughton (Gary), and two

children, Cacy and Matthew, were born of the marriage.      In 1984,

petitioner and Gary were divorced.      Pursuant to the divorce

agreement, which was incorporated into the final decree

dissolving the marriage, Gary would pay $250 per month for each

child as child support.   Petitioner was given physical custody of

the children.   The agreement further provided in paragraph 18

that Gary "shall be allowed the exemption for both State and

Federal tax returns for the minor children for the year 1984, and

each tax year thereafter."   In 1987, Cacy was injured in an

automobile accident.   On June 9, 1987, the Decree of Divorce was

modified to provide that Gary would maintain major medical and

dental insurance policies for the children and that

     all medical and dental expenses incurred by the minor
     children but not covered by insurance shall be split equally
     between the parties and each party shall be 50% obligated on
     said debit. In addition, the Defendant [Gary] agrees to be
     responsible for ½ of any medical expenses incurred by the
     minor child, Cacy as a result of her accident in January
     1987, that are not covered by insurance.

Paragraph 18, relating to the tax exemptions, was not modified.
                               - 3 -

     It is stipulated that Gary continually has made all payments

for child support.   Petitioner alleges, however, that he has not

satisfied the provisions of the amended decree relating to the

payment of medical expenses for the children.   For this reason,

on her 1994 and 1995 Federal income tax returns, petitioner

claimed an exemption for both children.   Respondent disallowed

the exemptions, the issue now before the Court.

                            Discussion

     Section 152(a) defines a dependent, inter alia, as a son or

daughter "over half of whose support, for the calendar year * * *

was received from the taxpayer (or is treated under subsection

(c) or (e) as received from the taxpayer)".   Under section

152(e)(1) generally the person who has custody for the greater

portion of the calendar year (the custodial parent) is treated as

having supplied over half of the support.   In the case, however,

of a divorce decree executed prior to January 1, 1985, the

noncustodial parent shall be treated as having supplied over half

the support if the noncustodial parent provides at least $600 for

the support of the child during the calendar year and the divorce

decree "provides that the noncustodial parent shall be entitled

to" the exemption for such child.   Sec. 152(e)(4)(A).   In the

case before us, Gary provided at least $600 for the support of

each child during 1995, the divorce decree was entered prior to
                               - 4 -

January 1, 1985,2 and the divorce decree provides that Gary

"shall be allowed the exemption[s] * * * for the minor children".

     Petitioner argues that it is inequitable to deny her the

exemptions because, when the medical expenses that Gary has not

paid are considered, she paid more than half of the support of

the children.   We answered the same question in McClendon v.

Commissioner, 74 T.C. 1, 3-4 (1980):

          However sympathetic we may be towards petitioner, the
     statute is clear on its face and leaves no room for implied
     exceptions. * * * [Section 152(e)(4)] was intended to
     provide a means whereby the parties to a divorce could take
     dependency exemptions directly into consideration when
     planning financial arrangements attendant to the divorce.
     The overriding purpose of the section is to provide
     certainty to the parties. We would subvert the intent and
     the spirit of the statute if we held that there was an
     implied exception when the party entitled to the exemption
     is not in compliance with the divorce decree. The statute
     is absolute, and its plain language must control. [Emphasis
     in original; citations and fn. ref. omitted.]

The divorce decree is a matter of State law, and, if it is to be

further amended, it is a matter for the State court and not this

Court.

                                    Decision will be entered

                               for respondent.




     2
         While the divorce decree was amended or modified after
that date, the pre-1985 provision in paragraph 18, relating to
the exemptions, was not modified and remains fully in effect.
