                  T.C. Summary Opinion 2009-181



                     UNITED STATES TAX COURT



         SCOTT A. AND SELINA R. MCCLURE, Petitioners v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 14086-08S.              Filed December 1, 2009.



     Scott A. and Selina R. McClure, pro se.

     Richard J. Hassebrock, for respondent.



     THORNTON, 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.1   Pursuant to section

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



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

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

for any other case.

     Respondent determined a $2,485 deficiency in petitioners’

2006 Federal income tax.    After concessions, the sole issue for

decision is whether petitioners are entitled to claim dependency

exemption deductions for two children of Scott McClure

(petitioner) by a previous marriage.2     When they petitioned the

Court, petitioners resided in West Virginia.

                             Background

     In 1992 petitioner divorced Deanna Mason McClure.     The final

divorce order awarded custody of their two young children to her

and provided that petitioner would “have the benefit of the

personal exemptions for the children on state and federal income

taxes.”   The final order is not signed by petitioner or his

former wife but is signed by their attorneys.

     Throughout 2006 petitioner’s former wife was the custodial

parent of both children.    On their joint 2006 Federal income tax

return petitioners claimed dependency exemption deductions for

the two children.    Petitioners did not attach to their return

Form 8332, Release of Claim to Exemption for Child of Divorced or

Separated Parents.    Respondent disallowed the dependency

exemption deductions.


     2
      Respondent concedes that petitioners are entitled to a
dependency exemption deduction for their granddaughter and are
entitled to a child tax credit for 2006.
                                 - 3 -

                             Discussion

     A taxpayer may claim a dependency exemption deduction for

each dependent.   Sec. 151(c).   A divorced, noncustodial parent

may claim a dependency exemption deduction for a child if certain

conditions are met.   One condition is that the custodial parent

must sign a written declaration that he or she will not claim the

child as a dependent; the noncustodial parent must attach the

written declaration to his or her return on which the child is

claimed as a dependent.    Sec. 152(e)(2).   The custodial parent

must make the written declaration “in such manner and form as the

Secretary may by regulations prescribe”.     Id.

     The regulations provide that the custodial parent may make

the required declaration on Form 8332 or in another document that

conforms to its substance.    Sec. 1.152-4T(a), Q&A-3, Temporary

Income Tax Regs., 49 Fed. Reg. 34459 (Aug. 31, 1984).     Form 8332

requires, among other things, the signature of the custodial

parent confirming his or her consent to releasing the dependency

exemption to the noncustodial parent.

     Petitioners do not dispute that they attached no Form 8332

to their 2006 return.    They contend, however, that they attached

a copy of the final divorce order to their return.     The record is

unclear on this point.    In any event, the final divorce order

does not conform to the substance of Form 8332 as required by the

applicable regulations.
                               - 4 -

     In Miller v. Commissioner, 114 T.C. 184, 190 (2000), affd.

on other grounds sub nom. Lovejoy v. Commissioner, 293 F.3d 1208

(10th Cir. 2002), this Court held that the requirements of

section 152(e)(2) were not met by the taxpayer’s attaching to his

return portions of divorce orders that were not signed by the

custodial parent but were instead signed by her attorney and then

only as to “form”.   Id. at 192-193.   The Court stated:

“Satisfying the signature requirement is critical to the

successful release of the dependency exemption within the meaning

of section 152(e)(2).”   Id. at 190.

     Unlike the attorney’s signature in Miller, the signature of

Deanna Mason McClure’s attorney on the final divorce order was

not qualified as indicating approval only as to form.      We do not

believe, however, that this circumstance provides petitioners any

greater relief.   Form 8332 would have required Deanna Mason

McClure’s signature affirmatively indicating her consent to

release the dependency exemption to petitioner.3   Without her




     3
      We need not and do not reach the question of whether a Form
8332 could be validly executed on behalf of a custodial parent by
an attorney who was authorized to represent the custodial parent
with respect to Federal income tax matters. There is no
indication in the record that the attorney who signed the final
divorce order on Mrs. McClure’s behalf was authorized to
represent Mrs. McClure with respect to her Federal income taxes.
                               - 5 -

signature, the final divorce order does not conform to the

substance of Form 8332, as required by the regulations.4

     Petitioners rely upon instructions in Publication 501,

Exemptions, Standard Deduction, and Filing Information, for use

in preparing their 2006 return.   Those instructions are

consistent with our holding.   The instructions indicate, at p.

11, that for tax year 2006 the noncustodial parent could satisfy

the requirements of section 152(e) by attaching to his or her tax

return, in lieu of a Form 8332, certain pages of a divorce decree

or separation agreement made after 1984.   The instructions

specify, however, that the noncustodial parent must attach all

relevant pages of the divorce decree or separation agreement,

including “The signature page with the other parent’s

signature”.5


     4
      We note that an earlier, short-lived statutory amendment
might have provided petitioners relief. Specifically, sec. 201
of the Working Families Tax Relief Act of 2004, Pub. L. 108-311,
118 Stat. 1173, amended sec. 152(e)(2), effective for tax years
beginning after Dec. 31, 2004, to allow a divorced noncustodial
parent to claim his or her child as a dependent if a decree of
divorce or separate maintenance or written separation agreement
between the parents provided that the noncustodial parent would
be entitled to any deduction allowable under sec. 151. This
provision was retroactively eliminated by a subsequent “technical
correction”, effective for tax years beginning after Dec. 31,
2004. See Gulf Opportunity Zone Act of 2005, Pub. L. 109-135,
sec. 404, 119 Stat. 2632.
     5
      Although not applicable to the case before us, final
regulations provide that to satisfy the requirements of sec.
152(e): “A court order or decree or a separation agreement may
not serve as a written declaration.” Sec. 1.152-4(e)(1)(ii),
                                                   (continued...)
                                - 6 -

     Petitioners suggest that because they were allowed

dependency exemption deductions for petitioner’s children for

earlier tax years, they should also be allowed the deductions for

2006.    The record is vague as to what happened in earlier years,

but the law is clear that respondent’s allowing the deductions in

earlier years does not estop him from denying them for 2006.    See

Easter v. Commissioner, 338 F.2d 968 (4th Cir. 1964), affg. T.C.

Memo. 1964-58.

     To reflect the foregoing and respondent’s concessions,


                                          Decision will be entered

                                     under Rule 155.




     5
      (...continued)
Income Tax Regs. These final regulations apply to taxable years
beginning after July 2, 2008. Sec. 1.152-4(h), Income Tax Regs.
