                  T.C. Summary Opinion 2007-47



                     UNITED STATES TAX COURT



                 ROBERT H. MARTIN, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 5908-05S.               Filed March 26, 2007.


     Robert H. Martin, pro se.

     Mary Ann Waters, for respondent.



     COUVILLION, Special Trial Judge:    This case was heard

pursuant to section 7463 of the Internal Revenue Code in effect

at the time the petition was filed.1    Pursuant to section

7463(b), the decision to be entered is not reviewable by any




     1
      Unless otherwise indicated, all subsequent section
references are to the Internal Revenue Code in effect for the
year at issue. All Rule references are to the Tax Court Rules of
Practice and Procedure.
                                - 2 -

other court, and this opinion should not be treated as precedent

for any other case.

      Respondent determined a deficiency of $5,485 in petitioner’s

Federal income tax for the year 2003.

      The issues for decision are whether petitioner is entitled

to:   (1) Dependency exemption deductions for two children under

section 151, and (2) a child tax credit under section 24.

      Some of the facts were stipulated and are so found.    The

stipulation of facts and the annexed exhibits are incorporated

herein by reference.   At the time the petition was filed,

petitioner resided at Glen Allen, Virginia.

      Petitioner filed his Federal income tax return for 2003 as a

head-of-household under section 2(b)(1) and claimed three

dependency exemption deductions under section 151 and a child tax

credit under section 24.   In the notice of deficiency, respondent

disallowed the three dependency exemption deductions and the

child tax credit.   Respondent further determined that

petitioner’s filing status was single.

      Petitioner was previously married to Olivia L. Martin.    They

were divorced in the year 2000.   Olivia L. Martin thereafter

married Forrest C. Nuckols.   Petitioner and Mrs. Nuckols had

eight children.   For the year at issue, five were adults and

three others were dependents.   Petitioner claimed the three

dependents on his Federal income tax return for 2003, and Mrs.
                               - 3 -

Nuckols, his former spouse, also claimed the same three children

on the joint Federal income tax return she filed with her spouse.

     At trial, respondent conceded that petitioner was entitled

to the dependency exemption deduction for one of the children

based on the fact that the child lived with petitioner during the

year at issue.   Respondent also conceded that petitioner was

entitled to head-of-household filing status and the child tax

credit with respect to that child.     The remaining issues are

whether petitioner is entitled to the dependency exemption

deductions for the two other children and the child tax credit as

to them.

     The two other children, a son and a daughter, lived with

their mother, Mrs. Nuckols, during the year at issue.     Petitioner

paid to his former spouse, during that year, $474 per month for

their support.   In addition, petitioner paid health insurance

premiums and medical expenses for the two children and had the

children with him for a 1-week vacation during the year in

Florida.   No evidence was presented as to the support provided

the two children by petitioner’s former spouse during the year at

issue or the total monetary amount provided by petitioner other

than the aforementioned monthly cash payments.     Petitioner

contends that on these facts, he is entitled to the dependency
                              - 4 -

exemption deductions for the two children and the related child

tax credit.2

     Section 151(c) allows taxpayers an annual exemption amount

for each “dependent” as defined in section 152.    Under section

152(a), the term “dependent” means certain individuals, such as a

son, daughter, stepson, or stepdaughter, “over half of whose

support, for the calendar year in which the taxable year of the

taxpayer begins, was received from the taxpayer (or is treated

under subsection (c) or (e) as received from the taxpayer)”.

     Section 152(e) provides a special support test in the case

of divorced parents or parents who have never been married with

respect to the dependency exemption deductions for such children.

See King v. Commissioner, 121 T.C. 245, 250 (2003).    Absent

exceptions not applicable here, if both parents together provide

over half of the support of a child, the parent having custody of

the child for the greater portion of the taxable year is entitled

to the dependency exemption for such child.    Sec. 152(e)(1).

With respect to the two children in this case, the Court is

satisfied that petitioner and the children’s mother provided over

half their support during the year at issue.    Because the two

children resided with petitioner’s former spouse, who had custody


     2
      This case is decided on the record without regard to the
burden of proof giving due consideration to sec. 7491.
                              - 5 -

of the children for the greater portion of the year, the Court

holds that petitioner is not entitled to the dependency exemption

deductions for the two children.   The dependency exemption

deduction goes to Mrs. Nuckols who had custody of them for the

greater portion of the year under section 152(e).    Respondent,

therefore, is sustained on this issue.

     With regard to the child tax credit, under section 24(c)(1),

that credit is allowed to a taxpayer with a qualifying child who

is entitled to the dependency exemption deduction for such child.

Since petitioner is not entitled to the dependency exemption

deduction for the two children, it follows that he is not

entitled to the child tax credit as to those children.



                                      Decision will be entered

                              under Rule 155.
