                  T.C. Summary Opinion 2002-41



                     UNITED STATES TAX COURT



               JENNIFER ANN ROGERS, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent

             WILLIAM R. LAUTENBERGER, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket Nos. 3890-01S, 5511-01S.     Filed April 18, 2002.



     Jennifer Ann Rogers, pro se in docket No. 3890-01S.

     William R. Lautenberger, pro se in docket No. 5511-01S.

     Andrew R. Moore, for respondent.



     WOLFE, Special Trial Judge:   These consolidated cases were

heard pursuant to the provisions of section 7463 of the Internal

Revenue Code in effect at the time the petitions were filed.   The

decisions to be entered are not reviewable by any other court,

and this opinion should not be cited as authority.   Unless
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otherwise indicated, subsequent 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 deficiencies in petitioners’ 1998

Federal income taxes as follows:

                 Docket No.             Amount

                 3890-01S               $4,504

                 5511-01S               $3,430

After concessions by respondent,1 the issues for decision are

whether either petitioner is entitled to:   (1) A dependency

exemption deduction for petitioners’ daughter, Diana M.

Lautenberger, and (2) a child tax credit for that daughter.

     Some of the facts have been stipulated and are so found.

When the petitions were filed in these cases, petitioner Jennifer

Ann Rogers (Ms. Rogers) resided in San Francisco, California, and

petitioner William R. Lautenberger (Mr. Lautenberger) resided in

Pacifica, California.


     1
      With respect to docket No. 3890-01S, respondent concedes
that for taxable year 1998 Ms. Rogers is entitled to: (1) Head
of household filing status; (2) a dependency exemption deduction
for her daughter, Morgan C. Campbell; (3) a child care credit of
$370 with respect to Morgan C. Campbell; and (4) a child tax
credit for Morgan C. Campbell.
     With respect to docket No. 5511-01S, respondent concedes
that for taxable year 1998 Mr. Lautenberger is entitled to: (1)
Head of household filing status; (2) a dependency exemption
deduction for his son, Alexander P. Lautenberger; and (3) a child
tax credit for Alexander P. Lautenberger.
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                            Background

     Petitioners formerly were married but were divorced in 1993.

They are the parents of Diana M. Lautenberger (Diana) and other

children.   Petitioners have been subject to various custody

orders concerning their children.   The custody order in effect

during 1998 provided for joint custody of Diana with physical

custody split equally between petitioners on a weekly basis.

With occasional exceptions, during 1998 Diana spent alternate

weeks with each of her parents.

     On their 1998 Federal income tax returns, both petitioners

claimed Diana as a dependent and both claimed a child tax credit

with respect to her.   Respondent determined deficiencies in both

petitioners’ 1998 Federal income taxes.   At the request of

respondent, the cases have been consolidated to assure that our

decisions are consistent.

                            Discussion

     Section 151(c) allows an individual taxpayer to deduct an

exemption amount for each dependent as defined in section 152 in

computing taxable income.   Under section 152(a), the term

“dependent” means certain individuals, including a son or

daughter of the taxpayer, over half of whose support was received

from the taxpayer (or is treated under subsection (c) or (e),

concerning multiple support or divorce situations, as received

from the taxpayer) during the calendar year in which the taxable
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year of the taxpayer begins.

     Generally, if a child’s parents are divorced, the child is

in the custody of one or both for the year, and the parents

provide over half of the child’s support, the custodial parent

(the parent with custody for the greater portion of the year) is

treated as having provided over half of the child’s support for

the year, and he or she may deduct the exemption amount with

respect to such child for the year.    Sec. 152(e)(1).   The

applicable regulations provide that “In the event of so-called

‘split’ custody, * * * ‘custody’ will be deemed to be with the

parent who, as between both parents, has the physical custody of

the child for the greater portion of the calendar year.”       Sec.

1.152-4(b), Income Tax Regs.

     Under section 24(a), a taxpayer is allowed a $400 credit for

each qualifying child.   For purposes of section 24, a taxpayer’s

child is a qualifying child only if the taxpayer is allowed a

dependency exemption deduction for the child under section 151.

Sec. 24(c)(1).   Here, if either petitioner is entitled to a

dependency exemption deduction for Diana, that petitioner is also

entitled to a child tax credit with respect to her.

     Mr. Lautenberger argues that during 1998 he had physical

custody of Diana for 187 days, while Ms. Rogers had physical

custody of Diana for only 178 days.    Mr. Lautenberger argues that

the difference in the number of days is attributable to a
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vacation that he took with Diana during July of 1998.    The

vacation occurred during a period of time that Diana otherwise

would have spent with Ms. Rogers.   In Mr. Lautenberger’s words,

“Jennifer and I * * * each had custody an equal amount of time,

other than that week, which put Diana in my custody more than 50

percent, more than 183 days of the year.”   Mr. Lautenberger

submitted into evidence a chart he created listing the days that

Diana spent with him and the days that Diana spent with Ms.

Rogers during 1998.   He also submitted two diaries that he

allegedly maintained contemporaneously that included notations

about the number of children that lived with him during any given

week.

     The evidence submitted by Mr. Lautenberger in support of his

claim is unconvincing and generally is self-serving and not

credible.   The chart showing which days of 1998 Diana spent with

each petitioner was compiled by Mr. Lautenberger one day before

trial (Feb. 5, 2002).   The chart, therefore, is nothing more than

a summary of his contentions.   Mr. Lautenberger’s diaries fail to

show that Diana spent a greater portion of the year with him than

with Ms. Rogers.   The diaries contain a “0”, “2”, or “4” on the

first page for each week, purportedly indicating how many

children lived with Mr. Lautenberger during that week.    The

diaries do not indicate which of the children the numbers refer

to, nor do they indicate which of the children or how many
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children lived with Mr. Lautenberger on any particular day of the

week.   It is also not clear whether the numerical notations were

contemporaneously made.   The vast majority of the entries in the

diaries were written in ink, but the numerical notations

indicating how many children lived with Mr. Lautenberger each

week were written in pencil.   Mr. Lautenberger admitted that he

had no independent memory of where Diana was during each day of

1998.   He also explained that the notations in his diary

regularly were used as a planning tool so that he could mark in

advance the children that probably would be with him for a month

and schedule his time accordingly.

     Ms. Rogers does not dispute that Diana went on a vacation

with Mr. Lautenberger during a week that Diana otherwise would

have spent with her.   She argues, however, that it is simply

impossible to ascertain which of the two of them had physical

custody of Diana for the greater portion of the year.

     Although Diana regularly alternated between petitioners on a

weekly basis during 1998, the parties did not rigidly enforce

compliance with the custody order.     Mr. Lautenberger testified

that “We have an agreement for a week on and a week off, so we

can say that most weeks generally are going back and forth.”     Ms.

Rogers testified that Diana generally spent one week at a time

with each petitioner, but that exceptions were made.     Ms. Rogers

stated:
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     William and I share custody exactly 50/50. * * *
     However, I don’t think that there’s any way that anyone
     can document the amount of time that each child was in
     the house.
           It’s not the intention of shared custody to try to
     finagle a tax exemption out of it, or else we would be
     marking every single minute that the child was in one
     house or the other.
           Diana goes to school in San Francisco, and I live
     in San Francisco, so she often stops by at other times
     in my house. I’ve picked her up when she’s sick, and
     of course I’m going to let her go on vacation with her
     father, because that’s to her benefit to have a
     vacation with her father, and as I mentioned, * * * he
     documented what he believes was his calendar, but he
     has no way of documenting my calendar or of knowing
     Diana’s whereabouts at every minute when she’s 14 years
     old.
           So it completely defeats the purpose of a shared
     custody. It’s for Diana’s benefit. It’s not to try
     and manipulate it in order to get a tax exemption, and
     I think it’s ridiculous for him to even introduce that
     idea.

Ms. Rogers further stated “My position is that * * * she was with

us equally”.

     Ms. Rogers’ testimony was delivered in a convincing manner,

obviously without regard to tax consequences, and we believe her

testimony.    Mr. Lautenberger’s testimony was not delivered in a

convincing manner, and his documentary evidence is not

convincing.

     These consolidated cases cried out for some reasonable

settlement between petitioners, particularly since respondent is

merely a disinterested stakeholder concerned only that the

dependency exemption and the child tax credit not be taken twice

for the same child.    Petitioners did not take that route despite
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many suggestions that they do so.   They insisted on decision by

the Court on this record.

     On the record presented to the Court, it would be sheer

unguided guesswork for the Court to find that Diana spent more

than half of 1998 with either petitioner.     One petitioner, Ms.

Rogers, has testified convincingly that Diana spent half her time

with each petitioner.   On this record we agree with Ms. Rogers

and conclude that during 1998 Diana did not spend more than half

her time with either parent but spent half her time with each.

Consequently we hold that neither petitioner is entitled to a

deduction for the exemption amount with respect to Diana for

1998, and neither petitioner is entitled to a child tax credit

with respect to Diana for 1998.

     Reviewed and adopted as the report of the Small Tax Case

Division.

                                            Decisions will be entered

                                       under Rule 155.
