                  T.C. Summary Opinion 2002-46



                     UNITED STATES TAX COURT



                MICHAEL J. GENTNER, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 9204-00S.             Filed May 6, 2002.



     Michael J. Gentner, pro se.

     John Aletta, for respondent.



     DINAN, Special Trial Judge:    This case was heard pursuant to

the provisions of section 7463 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.   Unless otherwise indicated,

subsequent section references are to the Internal Revenue Code in

effect for the year in issue.
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     Respondent determined a deficiency in petitioner’s Federal

income tax of $3,499 for the taxable year 1998.

     The issues for decision are whether, with respect to taxable

year 1998, petitioner is entitled to:    (1) Four dependency

exemption deductions, and (2) four child tax credits.

     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.    Petitioner resided in

Stamford, New York, on the date the petition was filed in this

case.

     Petitioner was separated from his wife at some point in time

prior to December 29, 1994.   On that date, a temporary support

order was entered by the Clerk of the Family Court of the State

of New York, County of Schoharie.   This order required petitioner

to make monthly payments of $780 to his wife for the support of

their four children.   The order also reflects that a prior

Temporary Order of Protection had been issued against petitioner.

     After the separation, petitioner continued to pay for

medical insurance for the children and for various expenses

related to the marital home, including monthly mortgage payments

of $410.29 and homeowner’s insurance.    During 1998, the children

resided exclusively in the jointly owned marital home with

petitioner’s wife; at no time during 1998 did the children reside

with petitioner.
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     Petitioner was granted a divorce in 1999, but the divorce

was appealed by petitioner and his wife.      The current status of

the appeal is unknown, but petitioner’s wife has remarried.

Petitioner sees his two youngest children once a month and sees

the two older children much less frequently.     He continues to pay

support and provide medical insurance for the children; he paid

for medical insurance for his wife through 1999.     He has also

paid for other expenses for the children over the years,

including clothing expenses.

     Petitioner filed a Federal income tax return for taxable

year 1998 with the filing status married filing separately.      For

each of his four children, petitioner claimed a dependency

exemption deduction and a child tax credit.     Petitioner reported

the following tax liability:

            Pension and annuity income           $31,246
            Itemized deductions                   (5,214)
            Personal exemption deduction          (2,700)
            Dependency exemption deductions      (10,800)
            Taxable income                        12,532
            Tax from tax tables                    1,879
            Child tax credits                     (1,600)
            Tax                                      279

     Only what appears to be the cover sheet from the statutory

notice of deficiency, without attachments, was introduced into

evidence.    Consequently, we do not have before us the rationale

for respondent’s adjustments.     The petition, along with the

parties’ arguments and testimony, center around petitioner’s

entitlement to the four dependency exemption deductions.
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     The first issue for decision is whether petitioner is

entitled to four dependency exemption deductions for taxable year

1998.

     A deduction generally is allowed under section 151(a) 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.   Id.1    Custody is defined in the regulations as follows:

          “Custody”, for purposes of this section, will be
     determined by the terms of the most recent decree of divorce
     or separate maintenance, or subsequent custody decree, or,
     if none, a written separation agreement. In the event of
     so-called “split” custody, or if neither a decree or
     agreement establishes who has custody, or if the validity or
     continuing effect of such decree or agreement is uncertain
     by reason of proceedings pending on the last day of the
     calendar year, “custody” will be deemed to be with the


     1
      For this rule to apply, the parents together must provide
over half of the child’s support. Sec. 152(e)(1)(A). We assume
arguendo that this requirement has been met. If it had not been
met, petitioner alone necessarily could not have provided over
half of his children’s support, as required under sec. 152(a).
                                 - 5 -

     parent who, as between both parents, has the physical
     custody of the child for the greater portion of the calendar
     year.

Sec. 1.152-4(b), Income Tax Regs.    One exception to this special

rule exists which entitles the noncustodial parent to the

dependency exemption deduction.    Sec. 152(e).   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.

Sec. 152(e)(2).

     The record leaves several gaps in the recounting of the

legal process relating to petitioner’s divorce.     However, it

appears that the only governing legal document concerning

petitioner’s custodial relationship with the children, as of

1998, is the temporary order issued in 1994.      It is evident from

this order--as well as from the fact that the children physically

resided exclusively with petitioner’s wife--that petitioner’s

wife was the custodial parent during 1998.    Petitioner did not

attach to his return a written declaration from his wife

releasing her claim to the dependency exemption deductions for

1998.   Therefore, petitioner, as the noncustodial parent, is not

entitled to the dependency exemption deductions for that year,

regardless of the amount he contributed toward the support of his

children.   Secs. 151 and 152.
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     The second issue for decision is whether petitioner is

entitled to four child tax credits for taxable year 1998.

     Subject to limitations and exceptions not applicable here, a

$400 credit is allowed to a taxpayer for each qualifying child of

the taxpayer.    Sec. 24(a).   Among other requirements, a

qualifying child is one for whom the taxpayer is entitled to a

dependency exemption deduction under section 151.       Sec.

24(c)(1)(A).    Because petitioner is not entitled to the

dependency exemption deductions for his children, he also is not

entitled to the child tax credits for them.

     Reviewed and adopted as the report of the Small Tax Case

Division.

     To reflect the foregoing,

                                         Decision will be entered

                                 for respondent.
