                  T.C. Summary Opinion 2007-176



                      UNITED STATES TAX COURT



                SHAWN A. FINNEGAN, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 23643-05S.             Filed October 22, 2007.



     Shawn A. Finnegan, pro se.

     Mark J. Miller and Eric Pearson (specially recognized), for

respondent.



     GOLDBERG, 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.   Pursuant to section

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

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

for any other case.   Unless otherwise indicated, subsequent
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section references are to the Internal Revenue Code in 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 for the year 2003 in the amount of $1,363.     The issue

for decision is whether petitioner is entitled to claim a

dependency exemption and a child tax credit for the taxable year

2003, pursuant to sections 151 and 24, respectively.

                             Background

     The stipulation of facts and the attached exhibits are

incorporated herein by reference.    At the time the petition was

filed, petitioner resided in Reedsburg, Wisconsin.

     Petitioner is employed as a police officer with the Sauk

County, Wisconsin, Sheriff’s Office.      Petitioner was involved in

a relationship with Jessica K. Dykstra for an unspecified period

of time prior to 1997.    They were never married.   In 1997, Ms.

Dykstra gave birth to a male child, M.F.1

     In 2000, Ms. Dykstra initiated a paternity action against

petitioner in the Circuit Court, Family Court Branch, Columbia

County, Wisconsin (Family Court).    As part of that action, the

Family Court adjudged petitioner to be the father of M.F.,

according to his admission of paternity in open court.     Pursuant

to a Judgment on Default (judgment) entered against Ms. Dykstra,


     1
         The Court uses initials when referring to a minor child.
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the Family Court ordered that with respect to the issue of the

dependency exemption for M.F., petitioner be awarded the tax

dependency exemption for M.F., provided that he was in compliance

with his obligation to maintain health insurance for the child

and current in his child support payments, as provided under the

judgment.

     During all taxable years since the child’s birth, including

the taxable year in issue, M.F. has resided with Ms. Dykstra.

Petitioner resides approximately 1 hour away from M.F. and has

parenting time with him approximately once or twice a month.

     Petitioner paid $4,852.26 in child support to Ms. Dykstra in

2003.   This total comports with the amount that petitioner was

ordered to pay in the underlying judgment.

     On his 2003 Federal income tax return, petitioner claimed

the dependency exemption deduction and a child tax credit with

respect to and for M.F.   In the notice of deficiency, respondent

explained that he was disallowing petitioner’s claimed exemption

for M.F. on the grounds that another taxpayer had also claimed

the dependency exemption for M.F. for the 2003 taxable year.

Accordingly, respondent disallowed the exemption with respect to

M.F. and correspondingly disallowed petitioner’s claimed child

tax credit.

     Subsequent to his receiving the notice of deficiency,

petitioner was made aware of Form 8332, Release of Claim to
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Exemption for Child of Divorced or Separated Parents, and of the

fact that this Form allows custodial parents to release a claim

of dependency exemption for a child.     Petitioner sent a copy of

form 8332 to Ms. Dykstra, asking her to complete and sign it.       At

that time, petitioner believed that because he was in compliance

with the terms of the aforementioned judgment during the year in

issue, and because he believed that he had contributed over one-

half of M.F.’s total support for 2003, he should be entitled to

claim the deduction.   When Ms. Dykstra did not comply with

petitioner’s first request, he brought an enforcement action

against Ms. Dykstra on February 20, 2006, and obtained a court

order for her to sign the Form 8332 for the 2003 taxable year.

Ms. Dykstra ultimately signed a Form 8332 on February 25, 2006,

thereby agreeing not to claim an exemption for M.F. for the 2003

taxable year.

                            Discussion

     In general, the Commissioner’s determination set forth in a

notice of deficiency is presumed correct.     Welch v. Helvering,

290 U.S. 111, 115 (1933).   In pertinent part, Rule 142(a)(1)

provides the general rule that the burden of proof shall be upon

the taxpayer.   In certain circumstances, however, if the taxpayer

introduces credible evidence with respect to any factual issue

relevant to ascertaining the proper tax liability, section 7491

shifts the burden of proof to the Commissioner.    Sec. 7491(a)(1);
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Rule 142(a)(2).   Petitioner did not argue that section 7491 is

applicable in this case, nor did he establish that the burden of

proof should shift to the respondent.    Petitioner, therefore,

bears the burden of proving that respondent’s determination in

the notice of deficiency is erroneous.    See Rule 142(a); Welch v.

Helvering, supra at 115.

      Section 151 allows deductions for personal exemptions,

including exemptions for dependents of the taxpayers.    See sec.

151(c).   Section 152(a) defines the term “dependent”, in

pertinent part, to include a son or daughter of the taxpayer over

half of whose support for the calendar year was received from the

taxpayer.    “[S]upport” includes “food, shelter, clothing, medical

and dental care, education, and the like.”    Sec. 1.152-

1(a)(2)(i), Income Tax Regs.   In determining whether an

individual received more than one-half of his or her support from

a taxpayer, there shall be taken into account the amount of

support received from the taxpayer as compared to the entire

amount of support which the individual received from all sources.

Id.

      Section 152(e) carves out a special exception to the

aforementioned in the case of parents who are divorced or

separated.    This exception has been held to apply in cases where

the parents were never married.    King v. Commissioner, 121 T.C.

245 (2003).   Simply put, section 152(e) provides that if a child
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receives over half of his support from his parents and is in the

custody of one or both of them for more than one-half of the

calendar year, then the parent having custody of the child for a

greater portion of the year at issue (a.k.a. the custodial

parent) is entitled to claim the dependency exemption deduction

for that child unless:   (1) The noncustodial parent is shown

entitled to the deduction under section 151 (including section

152(a)), or (2) the custodial parent has validly executed a

written release of his or her right to claim the deduction as the

custodial parent of record.

     The parties agree, and the record is clear, that petitioner

was not the custodial parent of M.F. during the year in issue.

     Petitioner maintains his entitlement to the exemption

deduction with respect to M.F. because of the terms of the

aforementioned judgment, which gave him the right to claim M.F.

as a dependent so long as he is current in his child support and

health insurance obligations.   The record is silent as to any

evidence contrary to the fact that, during the year in issue,

petitioner was compliant with these obligations; however,

although the judgment provides that petitioner would be entitled

to claim a dependency exemption in 2003 for M.F., is it well

settled that State courts, by their decisions, cannot determine
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issues of Federal tax law.   See Commissioner v. Tower, 327 U.S.

280 (1946); Miller v. Commissioner, 114 T.C. 184 (2000).

     Petitioner also argues his entitlement to claim the

dependency deduction by reason of Ms. Dykstra’s releasing her

claim to an exemption for M.F. for taxable year 2003 on a Form

8332 that she signed on February 26, 2006.   Petitioner contends

that Ms. Dysktra’s action comports with the previously discussed

exemption under section 152(e)(2), thus entitling him to claim

the dependency exemption for M.F. for taxable year 2003.

     When a custodial parent releases his or her exemption for

more than 1 year, the noncustodial parent must attach the

original release to his tax return for the immediate year and

attach a copy of the release to each succeeding year on which he

claims the dependency deduction.   Chamberlain v. Commissioner,

T.C. Memo. 2007-178.   Respondent urges that we disregard the Form

8332 submitted by petitioner, on the grounds that he did not

attach a completed Form 8332 or its equivalent to his 2003

Federal income tax return as required by section 152(e)(2) and

section 1.152-4T(a), Temporary Income Tax Regs. 49 Fed. Reg.

34459 (Aug. 31, 1984).

     Petitioner admits that he did not attach a Form 8332 to his

timely filed Federal income tax return for 2003.   Failure to

attach a valid Form 8332, or an equivalent written declaration to

the return at the time of filing, disqualifies a noncustodial
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taxpayer from claiming a dependency exemption for his minor

child.   See Presley v. Commissioner, T.C. Memo. 1996-553.

Section 152(e) is clear; it grants the dependency exemption to a

noncustodial parent only when he or she attaches a valid Form

8332 or its equivalent to a Federal income tax return for the

taxable year on which he or she claims the exemption.

Unfortunately, irrespective of what is contained in the judgment

as to petitioner’s right to claim a dependency exemption for

M.F., the law is clear that a taxpayer is entitled to a

dependency exemption in the taxable year if, and only if, he is

in compliance with section 152.   As previously stated, petitioner

has failed to meet this requirement.   Accordingly, the Court

concludes, with respect to section 152, petitioner is not

entitled to claim a dependency exemption with respect to M.F. for

taxable year 2003.   Accordingly, and because petitioner failed to

comply with this requirement, we sustain respondent’s

disallowance of the dependency exemption claimed by petitioner.

     Finally, and with respect to the child tax credit petitioner

claimed for M.F. in 2003, section 24(a) authorizes a child tax

credit with respect to each qualifying child of the taxpayer.

The term “qualifying child” is defined in section 24(c).     A

“qualifying child” means an individual with respect to whom the

taxpayer is allowed a deduction under section 151, who has not

attained the age of 17 as of the close of the taxable year, and
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who bears a relationship to the taxpayer as prescribed by section

32(c)(3)(B).   Sec. 24(c)(1).

     Since petitioner was not allowed a deduction with respect to

M.F. under section 151, it follows that, for the year in issue,

M.F. is not a qualifying child.   Consequently, irrespective of

language in the judgment to the contrary, petitioner is not

entitled to claim a child tax credit for M.F. in 2003.



                                            Decision will be entered

                                        for respondent.
