                  T.C. Summary Opinion 2003-128



                     UNITED STATES TAX COURT



    DONALD W. AND MARY ELLEN KLOPMAN MARTINEZ, Petitioners v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 6970-02S.             Filed September 12, 2003.



     Donald W. Martinez, pro se.

     Michelle M. Lippert and Dennis G. Driscoll, 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.   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 petitioners’ Federal

income tax of $3,008 for the taxable year 1999.

     The issue for decision is whether petitioners are entitled

to three dependency exemption deductions and a child tax credit

for the year in issue.

     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.    Petitioners resided in

Brunswick, Ohio, on the date the petition was filed in this case.

     Petitioner husband (petitioner) previously was married to

Tammy Martinez (Ms. Martinez).    Petitioner and Ms. Martinez, who

have three children--Melissa Martinez, Jennifer Martinez, and

Brian Martinez--were divorced in 1993.    Under the terms of the

Judgement Entry in the divorce, Ms. Martinez was to be the

“residential parent”.    During the year in issue, Ms. Martinez was

the custodial parent of all three children, who resided with her

in Virginia.   Petitioners resided in Ohio.

     On their joint Federal income tax return for 1999,

petitioners claimed a dependency exemption deduction for each of

petitioner’s three children.   There was no written declaration

attached to the return releasing Ms. Martinez’s claim to the

dependency exemption deductions.    Petitioners also claimed a

child tax credit with respect to two of the children.    In the
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statutory notice of deficiency, respondent disallowed each of the

dependency exemption deductions and the child tax credit in full.

     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 (a) who

are divorced, who are separated, or who live apart from their

spouses for at least the last 6 months of the calendar year, and

(b) whose child is in the custody of one or both parents 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, regardless of which

parent actually provided the support.      Id.   One exception to this

special rule exists which may entitle 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.

     In addition to the deduction under section 151(a), a credit

generally is allowed to a taxpayer for each qualifying child of
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the taxpayer.   Sec. 24(a).   Among other requirements, a

qualifying child is an individual for whom the taxpayer is

allowed a dependency exemption deduction under section 151.        Sec.

24(c)(1)(A).

     Petitioners admit that petitioner was the noncustodial

parent during the year in issue.    Because petitioners did not

attach to their return a written declaration signed by Ms.

Martinez, petitioners are not entitled to the dependency

exemption deductions.   Secs. 151 and 152.     We note that we do not

question petitioner’s support of his children; whether or not he

supported them, the declaration must be attached to the return.

Sec. 152(e)(2)(B).   Likewise, even if Ms. Martinez signed a

written declaration prior to the year in issue--as petitioners

argue--they are not entitled to the deductions in the year in

issue when the declaration was not attached to the return.         Id.

     Because petitioners are not entitled to the dependency

exemption deductions, they also are not entitled to the child tax

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

     Reviewed and adopted as the report of the Small Tax Case

Division.

                                        Decision will be entered

                                for respondent.
