                  T.C. Summary Opinion 2003-38



                     UNITED STATES TAX COURT



            ROBERT JAMES MENTZEL, JR., Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 12228-01S.                Filed April 21, 2003.



     Robert James Mentzel, pro se.

     Steven W. LaBounty, 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
                               - 2 -

effect for the year in issue, and all Rule references are to the

Tax Court Rules of Practice and Procedure.

     Respondent determined a deficiency in petitioner’s Federal

income tax of $805 for the taxable year 1998.

     The issue for decision is whether petitioner’s son resided

with petitioner for more than half of 1998, thereby entitling

petitioner to a dependency exemption deduction, to a child tax

credit, and to head of household filing status for that year.

     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 St.

Louis, Missouri, on the date the petition was filed in this case.

     Petitioner and his former wife, Barbara Mentzel (Ms.

Mentzel) were divorced on February 27, 1995.    The divorce decree

awarded petitioner and Ms. Mentzel joint legal custody of their

son, Robert James Mentzel III (Robert).   The decree, which was

prepared using a standardized form, contained provisions

concerning who was to be awarded “primary” physical custody

versus “temporary” physical custody; these provisions had been

selected, struck out, and written over in a somewhat unclear

manner.   The resulting language provided as follows:

     The Petitioner [Ms. Mentzel] and Respondent [petitioner]
     shall exercise Joint Legal Custody but the Primary
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     Physical...[1] Care, custody and control of the minor child
     awarded as follows: Robert James Mentzel III born Jan. 12,
     1991 whose legal address shall be Petitioner’s residence.[2]
     Respondent is awarded Temporary Custody of the minor child
     as follows.

Various provisions were then spelled out in detail concerning how

many days each party was to have physical custody.   In general,

the decree provided that petitioner was to have custody on Monday

and Thursday evenings and nights, on alternating weekends from

Friday evening through Sunday afternoon, and during the day on

Saturdays when Ms. Mentzel was working.   According to additional

provisions attached as an exhibit to the divorce decree, each

party was to receive 3 weeks of vacation with Robert and a

detailed schedule was devised dividing time over holidays and

birthdays.   The weekly, holiday, and birthday schedules all

included times of the day when custody was to change.   The effect

of the holiday and birthday schedules was to divide Robert’s time

nearly equally between petitioner and Ms. Mentzel.   The schedule

was not set in stone, however, as it provided for optional 3-day



     1
      This sentence was selected from an alternative sentence
providing “The Petitioner and Respondent shall exercise Joint
Legal and Physical...”.
     2
      It is unclear if an optional sentence was meant to be
inserted at this point. The box preceding this optional sentence
was not checked, but a blank line inside the sentence was filled
in with a “1”. The sentence provided “Visitation and Temporary
Custody per attached exhibit 1 incorporated in and made part of
the decree.” A document attached to the decree as Exhibit 1
provided the details concerning the vacation, holiday, and
birthday schedules discussed infra.
                                - 4 -

weekends instead of the usual 2 days for petitioner, the

frequency of when Ms. Mentzel was to work on Saturdays was not

specified, and the decree contained a provision allowing the

parties to “make such changes in the physical custody schedule,

vacation, holiday and birthday schedule that they may agree on.”

Finally, the decree ordered petitioner to pay (a) child support

of $550 per month to Ms. Mentzel; (b) medical insurance premiums

for Robert; and (c) half of Robert’s uninsured medical expenses.

     Petitioner filed a Federal income tax return for taxable

year 1998 with a filing status of head of household.    On this

return, petitioner claimed a dependency exemption deduction and a

child tax credit for Robert.    In the statutory notice of

deficiency, respondent changed petitioner’s filing status to

single and disallowed the dependency exemption deduction and

child tax credit.

     A deduction generally is allowed for each dependent of a

taxpayer under section 151.    Sec. 151(a), (c)(1).   As a general

rule, 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

separately 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

and who together provide over half of the child’s support.    Sec.
                                  - 5 -

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.   Custody is determined 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
     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.     An exception to the special

rule exists which entitles the noncustodial parent to the

dependency exemption deduction.     Sec. 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.    The Internal Revenue Service provides Form 8332,

Release of Claim to Exemption for Child of Divorced or Separated

Parents, which can be used as the written declaration required by

section 152(e)(2).

     A credit generally 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
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entitled to a dependency exemption deduction under section 151.

Sec. 24(c)(1)(A).

     As is applicable here, for a taxpayer to be entitled to head

of household filing status for a given taxable year, the taxpayer

must maintain “as his home a household which constitutes for more

than one-half of such taxable year the principal place of abode”

of a child of the taxpayer.   Sec. 2(b)(1)(A)(i).

     Petitioner argues that the divorce decree provided for split

physical custody and that petitioner had actual physical custody

of Robert for a greater number of days in 1998 than did Ms.

Mentzel.   We agree that the divorce decree effectively provided

for split custody between petitioner and Ms. Mentzel.    However,

we do not find that petitioner had actual custody of Robert for a

greater number of days than did Ms. Mentzel.

     To corroborate petitioner’s assertion that Robert resided

with him for a greater number of days, petitioner provided a

calendar allegedly detailing the number of days he had physical

custody of Robert during that year.    The days which petitioner

allegedly had custody of Robert are simply highlighted, and

monthly totals such as “B-14" and “M-17" indicate the alleged

total number of days petitioner and Ms. Mentzel each had custody

during that month.   The yearly totals indicate petitioner had

custody for 186 days, Ms. Mentzel for 176 days, and child care

providers for 3 days.   This calendar appears to have been filled
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out in preparation for trial rather than during the year in

issue:   No other notations appear on the calendar, indicating it

likely was not used as a general calendar during that year.

Furthermore, the accuracy of the calendar is questionable because

it fails to distinguish between those days on which petitioner

had custody for the majority of the day and those days on which

he had custody for only a few hours; according to the divorce

decree and petitioner’s own testimony this would have happened on

many occasions.    We do not find this calendar to be credible

evidence of the amount of time petitioner had physical custody of

Robert during 1998.

     The terms of the divorce decree, after accounting for the

time Robert would have been in school and in child care, splits

the physical custody of Robert nearly equally between petitioner

and Ms. Mentzel.    Understandably, the record in this case fails

to establish the exact number of days each of them actually spent

with Robert.   However, because petitioner has failed to provide

credible evidence regarding this issue, the burden of proof

remains on him to show respondent’s determinations to be in

error.   Sec. 7491(a)(1); Rule 142(a).   Petitioner has failed to

show that he was Robert’s custodial parent during 1998, and

petitioner did not attach to his return a written declaration

signed by Ms. Mentzel.    Thus, he is not entitled to the

dependency exemption deduction pursuant to the special rules of
                                 - 8 -

section 152(e).   Furthermore, assuming arguendo that custody was

split exactly evenly, petitioner has failed to show that he

provided over half of Robert’s support during 1998; petitioner

therefore would not be entitled to the dependency exemption

deduction pursuant to the general rule of section 152(a).

     Because petitioner is not entitled to the dependency

exemption deduction, he also is not entitled to the child tax

credit.   Sec. 24(c)(1)(A).   Finally, because petitioner has

failed to establish that Robert resided with him for more than

half of 1998, he is not entitled to head of household filing

status.   Sec. 2(b)(1).

     Reviewed and adopted as the report of the Small Tax Case

Division.

     To reflect the foregoing,

                                         Decision will be entered

                                 for respondent.
