                    T.C. Summary Opinion 2009-41



                       UNITED STATES TAX COURT



         KRISTENE JO AND JEROME PHILIP HAHN, Petitioners v.
            COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 25553-07S.              Filed March 25, 2009.



     Kristene Jo and Jerome Philip Hahn, pro sese.

     Caroline Krivacka, for respondent.



     GALE, Judge:   This case was heard pursuant to the provisions

of section 7463 of the Internal Revenue Code in effect when the

petition was filed.1   Pursuant to section 7463(b), the decision




     1
      Unless otherwise indicated, all section references are to
the Internal Revenue Code of 1986 as in effect for the taxable
year in issue, and all Rule references are to the Tax Court Rules
of Practice and Procedure. All dollar amounts have been rounded
to the nearest dollar.
                                   - 2 -

to be entered is not reviewable by any other court, and this

opinion shall not be treated as precedent for any other case.

       Respondent determined a deficiency of $1,480 with respect to

petitioners’ 2005 Federal income tax.        The issues for decision

are:       (1) Whether petitioners are entitled to a dependency

exemption deduction under section 151(a) and (c); and (2) whether

petitioners are entitled to a child tax credit under section

24(a).

                                Background

       Some of the facts have been stipulated.      We incorporate the

stipulated facts and exhibits into our findings by this

reference.       At the time the petition was filed, petitioners

resided in Kentucky.       We shall hereinafter refer to petitioner

Jerome Philip Hahn alone as Jerome and petitioner Kristene Jo

Hahn alone as Kristene.

       Petitioners timely filed a joint return for their 2005

taxable year, which was a calendar year, in which they claimed a

dependency exemption deduction and a child tax credit for NH,

Jerome’s minor son2 from a prior marriage to Jessica Hahn

(Jessica).       Respondent issued a notice of deficiency with regard

to petitioners’ 2005 taxable year, disallowing the dependency

exemption deduction and child tax credit petitioners claimed for

NH.


       2
        NH was 4 years old in 2005.
                              - 3 -

     On March 23, 2004, Jerome and Jessica divorced.   A custody

decree and parenting plan (original custody order) was entered in

the Superior Court of the State of Washington, County of Pierce

(superior court), which gave Jessica primary custody of NH and

awarded Jerome custody of NH every other weekend.   On the same

date the superior court filed a separate order of child support

(order of child support) that directed Jerome to make monthly

payments of child support and authorized him to claim the

dependency exemption for NH for Federal income tax purposes so

long as he was current with his child support obligation as of

December 31st of each year.

     Petitioners married in 2004.   During 2005 petitioners and

Jessica lived close to each other, and they often deviated from

the terms of the original custody order, either when Jerome

wanted to keep NH beyond his scheduled weekend visit or when

Jessica was occupied and could not care for NH.   This arrangement

resulted in petitioners’ having physical custody of NH for days

in addition to Jerome’s scheduled weekend visits.

     On April 1, 2005, Jerome filed a petition in superior court

to modify the original custody order.   The petition sought

primary custody of NH for Jerome and requested entry of a new

parenting plan that would more accurately reflect the actual

physical custody of NH, which the petition alleged had changed

substantially since entry of the original custody order.
                                - 4 -

     Attached to the petition was a summary petitioners prepared

of the days on which they had physical custody of NH during the

months of May 2004 through March 2005.     According to the summary,

petitioners had physical custody of NH for 157 days during this

period.

     The superior court did not modify the original custody order

in 2005.

     On March 14, 2006, Jerome and Jessica entered into a

mediation agreement that gave Jerome physical custody of NH every

other weekend from Friday at 6 p.m. to Monday at 6 p.m., every

Sunday from 6 p.m. to Monday at 6 p.m., and every Tuesday from 4

p.m. to Wednesday at 6 p.m.

     On May 19, 2006, the superior court issued a final order

(modified custody order) modifying the original custody order

which directed custody for NH under the same terms as the

mediation agreement.

     Jessica did not execute a Form 8332, Release of Claim to

Exemption for Child of Divorced or Separated Parents, or any

similar waiver releasing her right to claim an exemption for NH

for 2005.

                              Discussion

Burden of Proof

     The Commissioner’s determinations in the notice of

deficiency are presumed correct, and taxpayers generally bear the
                                 - 5 -

burden of proving that the determinations are in error.       See Rule

142(a); Welch v. Helvering, 290 U.S. 111, 115 (1933).       Although

section 7491(a) may shift the burden of proof to the Commissioner

in specified circumstances, we need not decide which party bears

the burden of proof because in this case the outcome does not

depend on the burden of proof.    See Blodgett v. Commissioner, 394

F.3d 1030, 1039 (8th Cir. 2005), affg. T.C. Memo. 2003-212;

Polack v. Commissioner, 366 F.3d 608, 613 (8th Cir. 2004), affg.

T.C. Memo. 2002-145.   We render our findings on the preponderance

of the evidence.

Dependency Exemption Deduction

     Section 151(a) and (c) allows a taxpayer a deduction for

each individual who is a dependent of the taxpayer (as defined in

section 152) for the taxable year.       Section 152(a) defines a

dependent to include a “qualifying child”.       Section 152(c)

defines a qualifying child to include the son of a taxpayer who

has the same principal place of abode as the taxpayer for more

than one-half of the taxable year, who is under age 19 as of the

close of the calendar year in which the taxpayer’s taxable year

begins, and who has not provided over one-half of his own support

for the year.

     Section 152(e) provides a special rule where the parents of

a child are divorced and the child receives over one-half of his

or her support from, and for more than one-half of the calendar
                               - 6 -

year is in the custody of, one or both of the divorced parents.

Under the special rule, notwithstanding which parent is the

“custodial parent” (i.e., the parent with whom the child shared

the same principal place of abode for the greater portion of the

year), the child is treated as the qualifying child of the

“noncustodial parent” (i.e., the parent that is not the

“custodial parent”) if the custodial parent executes a written

declaration that he or she will not claim the child as a

dependent on his or her return for the year.   Sec. 152(e)(1) and

(2)(A).   The declaration must be attached to the noncustodial

parent’s return.   Sec. 152(e)(2)(B); see Miller v. Commissioner,

114 T.C. 184, 190-191 (2000); Walker v. Commissioner, T.C. Memo.

2008-194.

     The parties direct a large part of their arguments at

whether Jerome was current with his child support obligations so

as to qualify him to claim the dependency exemption deduction for

NH pursuant to the superior court’s March 23, 2004, order of

child support.   However, the terms of a State court decree are

irrelevant to the determination of whether petitioners are

entitled to claim the dependency exemption deduction for NH in

2005.   A State court order granting a taxpayer the right to claim

the dependency exemption deduction is ineffective if the

requirements of section 152 are not met, because a State court
                              - 7 -

cannot determine issues of Federal tax law.3   Miller v.

Commissioner, supra at 196.

     Accordingly, petitioners’ entitlement to the deduction for

2005 depends upon whether Jerome can satisfy section 152(c), by

showing that NH had the same principal place of abode as Jerome

for more than half of 2005, or section 152(e),4 by showing that,

notwithstanding NH’s having shared the same principal place of

abode with Jessica for the greater portion of 2005, Jessica

signed a Form 8332 or an equivalent written declaration releasing

her right to claim an exemption for NH for 2005 and such waiver

was attached to petitioners’ 2005 return.   Sec. 152(e)(1) and

(2); see also Miller v. Commissioner, supra at 191-192 (“The

signature of the custodial parent is critical to the successful


     3
      Congress has considered and rejected the idea that a State
court decree should determine which divorced or separated parent
is entitled to claim the dependency exemption. Sec. 152(e)(2)
was amended by the Working Families Tax Relief Act of 2004
(WFTRA), Pub. L. 108-311, sec. 201, 118 Stat. 1169, effective for
taxable years beginning after Dec. 31, 2004, to provide that a
noncustodial parent is entitled to the dependency exemption
deduction if “a decree of divorce or separate maintenance or
written separation agreement * * * provides that * * * the
noncustodial parent shall be entitled to any deduction allowable
under section 151 for such child”). However, Congress
retroactively repealed the foregoing provision so that it had no
effect. See Gulf Opportunity Zone Act of 2005, Pub. L. 109-135,
sec. 404, 119 Stat. 2632 (retroactively amending sec. 152(e)(2),
effective as if included in the WFTRA, to eliminate the
noncustodial parent’s entitlement to a dependency exemption
deduction pursuant to a State court decree).
     4
      The exception in sec. 152(e)(3) does not apply. There was
no pre-1985 instrument within the meaning of sec. 152(e)(3)
applicable to NH.
                               - 8 -

implementation of Congress’ plan to eliminate support-based

disputes regarding dependency exemptions and to simplify the

rules regarding when a noncustodial parent may claim the

dependency exemptions for his or her children.”).

     It is undisputed that petitioners did not attach to their

2005 return a Form 8332 or an equivalent written declaration

signed by Jessica.   Thus, the only way petitioners can show

entitlement to the deduction is by showing that NH resided with

them for more than one-half of 2005.   Petitioners assert that he

did, notwithstanding the terms of the original custody order that

gave Jerome custody of NH only on alternating weekends.    However,

petitioners’ testimony on this point was confusing and

inconsistent.   Jerome testified that in 2005 NH resided with

petitioners for longer periods than were provided in the original

custody order, and that NH’s periods of residence with them as

reflected in the written summary submitted to the superior court

in connection with Jerome’s April 1, 2005, petition were

representative of 2005 as a whole.

     The written summary, covering May 2004 through March 2005,

indicates that NH resided with petitioners for 157 days, or

approximately 47 percent of the 335 days covered.   In contrast,

Kristene testified that the written summary was representative

until Jerome filed the April 1, 2005, petition seeking a

modification in the original custody order, after which time
                                - 9 -

Jerome and Jessica strictly followed the original custody order

(providing for Jerome’s custody of NH only on alternating

weekends).   If Kristene’s testimony is more accurate, then NH

resided with petitioners for significantly less than 47 percent

of 2005.   Kristene also testified that at some point in 2005 the

parents’ practice regarding NH’s custody approximated the terms

of the mediation agreement reached with Jessica in March 2006

(later incorporated in the modified custody order of May 19,

2006).   Under the mediation agreement/modified custody order,

Jerome had custody of NH “From Friday at 6:00 p.m. to Monday at

6:00 p.m. every other week * * * [as well as] every other Sunday

from 6:00 p.m. to Monday at 6:00 p.m. and every Tuesday from 4:00

p.m. to Wednesday at 6:00 p.m.”.   Pursuant to these terms, NH

would not have resided with petitioners for more than half the

year.

     None of the scenarios described in petitioners’ testimony

resulted in NH’s residing with petitioners for more than half of

any month in 2005.   Thus, under any of the scenarios variously

claimed, regardless of the portion of 2005 in which each may have

been operative, NH’s residency with petitioners did not exceed

one-half of 2005.    Consequently, NH was not Jerome’s “qualifying

child” and therefore not his “dependent” within the meaning of

section 152.   We accordingly conclude that petitioners have not

shown that they were entitled to claim a dependency exemption
                                - 10 -

deduction for NH in 2005, and we sustain respondent’s

determination to that effect.

Child Tax Credit

     Subject to income limitations not pertinent here, a child

tax credit is allowed with respect to each “qualifying child” of

the taxpayer.   Sec. 24(a) and (b).      A “qualifying child” for this

purpose is one who meets the requirements of a “qualifying child”

for purposes of the dependency exemption deduction under section

152(c) who has not attained age 17.      Sec. 24(c).   Since we have

concluded that NH was not a “qualifying child” for purposes of

section 152(c) (or (e)), NH is not Jerome’s “qualifying child”

under section 24(c).   Consequently, petitioners are not entitled

to claim a child tax credit, and we sustain respondent’s

determination to that effect.

     To reflect the foregoing,


                                           Decision will be entered

                                   for respondent.
