                  T.C. Summary Opinion 2011-65



                      UNITED STATES TAX COURT



                KEVIN DEAN CHAFFEE, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 10847-09S.              Filed June 1, 2011.



     Kevin Dean Chaffee, pro se.

     Rachael J. Zepeda, for respondent.



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

     1
      Unless otherwise indicated, all 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.
                                  -2-

this opinion shall not be treated as precedent for any other

case.

     Respondent determined a $3,700 deficiency in petitioner’s

2007 Federal income tax due solely to the disallowance of two

dependency exemption deductions and related child tax credits.

                              Background2

        Petitioner resided in Arizona at the time his petition was

filed.     He had two children, GC and AC-A, and married GC’s

mother, Kimberly Ann Chaffee (Ms. Chaffee), on January 31, 2001.3

Petitioner and Ms. Chaffee resided together with GC in 2007 until

petitioner and Ms. Chaffee separated on August 24, 2007.        When

they separated, Ms. Chaffee took GC and moved into a separate

residence.     Petitioner and Ms. Chaffee divorced on June 12, 2008.

     Petitioner shared custody of AC-A in 2007 with her mother,

Mercedes Lopez (Ms. Lopez), pursuant to an order issued by the

Superior Court of Arizona, Pima County.     The order also stated

that petitioner “shall be entitled to claim * * * [AC-A] as a

dependent for federal and state income tax purposes for tax year

1997 and thereafter”.     Petitioner and Ms. Lopez were never

married.



     2
      The stipulation of facts and the attached exhibits are
incorporated herein by this reference.
     3
      The Court uses initials to refer to minor children.       See
Rule 27(a)(3).
                                   -3-

      Petitioner timely filed a Form 1040, U.S. Individual Income

Tax Return, for 2007 as married filing separately.       He claimed

dependency exemption deductions and child tax credits for GC and

AC-A.   Petitioner did not attach a Form 8332, Release of Claim to

Exemption for Child of Divorced or Separated Parents, to his

return.    Ms. Chaffee and Ms. Lopez also claimed dependency

exemption deductions for GC and AC-A, respectively, for 2007.

                               Discussion

      In general the Commissioner’s determinations are presumed

correct, and the taxpayers bear the burden of showing that the

determinations are in error.      Rule 142(a); Welch v. Helvering,

290 U.S. 111, 115 (1933).      Deductions and credits are a matter of

legislative grace, and taxpayers bear the burden of proving

entitlement to any deduction or credit claimed on a return.      See

INDOPCO, Inc. v. Commissioner, 503 U.S. 79, 84 (1992); Wilson v.

Commissioner, T.C. Memo. 2001-139.

I.   Dependency Exemptions

      A.   GC

      Section 151(c) allows a deduction for an exemption for each

dependent.      As relevant here, a dependent must be a qualifying

child that meets the relationship, residency, age, and support

requirements of section 152(c).      Sec. 152(a)(1).   If both parents

claim the same child as a qualifying child on separate Federal

income tax returns, the child is treated as the qualifying child
                                 -4-

of the parent with whom the child resided for the longer period

during the year.    Sec. 152(c)(4)(B)(i).

     Petitioner contends that he had equal custody of GC in

2007,4 but he has not offered evidence sufficient to corroborate

that assertion.    To the contrary, respondent provided a log kept

by Ms. Chaffee which indicated that petitioner had custody for

only 22 out of the 129 days after petitioner and Ms. Chaffee

separated.    Although petitioner has shown that Ms. Chaffee’s log

failed to account for 3 days for which he had custody, he still

falls far short of establishing that he had equal custody of GC

in 2007.    He is thus not entitled to a dependency exemption

deduction for GC.

     B.    AC-A

     For divorced parents, section 152(e)(1) and (2) provides

that a child will be treated as a qualifying child of the

noncustodial parent if the custodial parent signs a written

declaration that she will not claim the child as a dependent and

the noncustodial parent attaches that declaration to his tax

return.    The declaration must be made either on Form 8332 or in a

statement conforming to the substance of that form.    Miller v.



     4
      Respondent concedes that GC is the qualifying child of both
petitioner and Ms. Chaffee and that if petitioner and Ms. Chaffee
had equal custody of GC, petitioner would be entitled to the
dependency exemption deduction for GC because his adjusted gross
income for 2007 was greater than Ms. Chaffee’s. See sec.
152(c)(4)(B)(ii).
                                   -5-

Commissioner, 114 T.C. 184, 189 (2000); Neal v. Commissioner,

T.C. Memo. 1999-97.    Section 152(e)(1) also applies to parents

who are not married.      King v. Commissioner, 121 T.C. 245, 250

(2003).

      Although petitioner and Ms. Lopez shared joint custody of

AC-A, petitioner does not dispute that Ms. Lopez had primary,

physical custody of AC-A and was therefore the custodial parent.

Petitioner claims he did not attach a Form 8332 to his tax return

because Ms. Lopez refused to sign one.     Instead, he included a

copy of the superior court’s order with his tax return.

Unfortunately, that order cannot be considered the equivalent of

a Form 8332.   See Miller v. Commissioner, supra; Neal v.

Commissioner, supra.      Petitioner is therefore not entitled to a

dependency exemption deduction for AC-A.

II.   Child Tax Credits

      Section 24(a) provides for a “credit against the tax * * *

for the taxable year with respect to each qualifying child of the

taxpayer”.   Section 24(c)(1) defines the term “qualifying child”

as “a qualifying child of the taxpayer (as defined in section

152(c)) who has not attained age 17.”     Because we have concluded

that GC and AC-A are not qualifying children under section 152,

they are also not qualifying children for purposes of section 24.

We therefore hold that petitioner is not entitled to the claimed

child tax credits.
                            -6-

To reflect the foregoing,


                                       Decision will be entered

                                  for respondent.
