                  T.C. Summary Opinion 2003-86



                      UNITED STATES TAX COURT



                 RICHARD R. IZAC, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 8634-01S.             Filed June 30, 2003.



     Richard R. Izac, pro se.

     Dustin M. Starbuck, for respondent.



     CARLUZZO, 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.    Unless otherwise

indicated, subsequent section references are to the Internal

Revenue Code in effect for 1998.   The decision to be entered is

not reviewable by any other court, and this opinion should not be

cited as authority.
                               - 2 -

     Respondent determined a deficiency of $1,356 in petitioner’s

1998 Federal income tax.   The issues for decision are: (1)

Whether petitioner is entitled to a dependency exemption

deduction for one of his children, and (2) whether petitioner is

entitled to a child tax credit.

Background

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

At the time the petition was filed, petitioner resided in

Chesterfield, Virginia.

     Petitioner married Donna Bonner on March 12, 1983.    They

have two children, Patrick Ross Izac, born August 8, 1986, and

Jerilyn Renee Izac, born May 27, 1992.   Petitioner and Ms. Bonner

separated in 1995 and were divorced on February 3, 1997.

     On November 12, 1996, a Virginia court with jurisdiction

over such matters issued an order that provides, in relevant

part:

     it is hereby ORDERED that * * * [petitioner and Ms.
     Bonner] are granted joint shared custody of their
     infant children. * * * [Ms. Bonner] shall have
     physical custody of the children until such time as
     school begins. Thereafter, * * * [petitioner and Ms.
     Bonner] shall alternate having physical custody of the
     children on an every other school grading period basis,
     with * * * [petitioner] having physical custody of the
     children during the first school grading period, * * *
     [Ms. Bonner] having physical custody during the second
     school grading period, and so forth, until the end of
     school. During the summer vacation, * * * [petitioner
     and Ms. Bonner] shall equally divide their time with
     the children.
                                - 3 -

The order also established specific visitation rights for

holidays and for each parent during those periods when the other

parent had physical custody.

     On April 6, 1998, a Virginia court with jurisdiction over

such matters issued an order that provides, in relevant part:

     Physical custody of the children will be with * * *
     [petitioner] during the first one-half of the summer
     and with * * * [Ms. Bonner] during the second one-half
     of the summer.

We interpret the reference to “summer” to relate to the summer

recess from the school (or schools) attended by petitioner’s

children.

     During 1998, petitioner’s son attended school in the

Chesterfield County Public School System.    For calendar year

1998, and within the meaning of the above-referenced November 12,

1996, order, the second grading period for that school system for

academic year 1997-1998 started November 4, 1997, and ended

January 30, 1998 (30 calendar days in 1998).    The third grading

period for the school for academic year 1997-1998 started January

31, 1998, and ended April 3, 1998 (63 calendar days).    The fourth

grading period started April 4, 1998, and the last day of class

for students was June 16, 1998 (74 calendar days).    The summer

recess for students extended from June 17, 1998, until September

7, 1998 (83 calendar days).    The first grading period for

academic year 1998-1999 started September 8, 1998, and ended

November 11, 1998 (65 calendar days).    The second grading period
                                - 4 -

for academic year 1998-1999 started on November 12, 1998, and

continued into 1999 (50 calendar days in 1998).

     On his timely filed 1998 Federal income tax return,

petitioner identified both of his children in the area of the

return where dependents are listed, but only claimed a dependency

exemption deduction for his son.     He also claimed a $200 child

tax credit.

     In the notice of deficiency respondent disallowed the

dependency exemption deduction because, according to respondent,

petitioner “did not provide more than 50 percent” of his son’s

“total support”.    Respondent also disallowed the child tax credit

because “one or more qualifying children claimed on * * *

[petitioner’s] return has been disallowed”.

Discussion

     In general, a taxpayer is entitled to a dependency exemption

deduction for each of the taxpayer’s dependents.     Sec. 151(c).

The term “dependent” includes the taxpayer’s child, over half of

whose support for the year is received, or treated as received,

from the taxpayer.    Sec. 152(a).   Because petitioner’s son is the

child of divorced parents, his support is determined pursuant to

section 152(e).    That section provides, subject to certain

conditions not in dispute and exceptions not applicable here,

that the child is treated as having received over half of his or

her support from the parent who has custody over the child for a
                               - 5 -

greater portion of the year.   That parent is referred to as the

“custodial parent”.   Because the child is treated as having

received over half of his or her support from the custodial

parent, the custodial parent is generally entitled to a

dependency exemption deduction for the child regardless of the

amount of support the child actually received from that parent.

     Petitioner claims that he, rather than Ms. Bonner, was his

son’s custodial parent for a greater portion of 1998 and is

therefore entitled to the dependency exemption deduction here in

dispute.   In this regard, petitioner submitted a 1998 calendar

marked with an “F” on those days of the year when his son lived

with him, and an “M” on those days of the year when his son lived

with Ms. Bonner.   Because petitioner’s calendar supports his

claim that his son lived with him for a greater portion of 1998,

petitioner maintains that he is entitled to the dependency

exemption deduction here in dispute.   Although the calendar

demonstrates that petitioner’s son lived with petitioner for a

greater portion of 1998, we do not agree that petitioner should

be treated, for purposes of section 152(e), as his son’s

custodial parent for that year.

     The word “custody” as used in section 152(e) is defined in

section 1.152-4(b), Income Tax Regs., which states:

          (b) Custody. “Custody”, for purposes of this
     section, will be determined by the terms of the most
     recent decree of divorce or separate maintenance, or
     subsequent custody decree, or, if none, a written
                                  - 6 -

     separation agreement. In the event of so-called
     “split” custody, or if neither a decree or agreement
     establishes who has custody, or if the validity or
     continuing effect of such decree or agreement is
     uncertain by reason of proceedings pending on the last
     day of the calendar year, “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.

     For purposes of section 152(e), custody is determined by the

terms of the most recent custody decree, or, if none, by the

terms of a written separation agreement in effect at the relevant

time.   Id.     In this case the orders referred to above award

petitioner and Ms. Bonner “joint shared” custody over

petitioner’s son.      As applied to 1998, the orders award physical

custody of petitioner’s son as follows:

                Time Period                Days of Custody in 1998
                                          Petitioner     Ms. Bonner

        1997-1998 academic year,             ---            30
        second grading period

        1997-1998 academic year,             63             ---
        third grading period

        1997-1998 academic year,             ---            74
        fourth grading period

        1998 summer recess                   41.5           41.5

        1998-1999 academic year,             65             ---
        first grading period

        1998-1999 academic year,             ---            50
        second grading period

              Total days                    169.5          195.5
                                - 7 -

     To the extent that the above-referenced orders allocate

physical custody of petitioner’s son between petitioner and Ms.

Bonner for specific periods, the days included within those

periods are counted, respectively, as days of physical custody

for either petitioner or Ms. Bonner for purposes of section

152(e).    Because the relevant orders specifically provide for

physical custody of petitioner’s son for every day of the year,

contrary to petitioner’s position, it is not necessary to

determine where petitioner’s son lived on any given day during

1998.   Under the circumstances of this case, the reference to

“physical custody” in the regulation does not mean physical

presence.    Furthermore, days of visitation are not counted as

days of physical custody.

     The above-referenced orders establish that Ms. Bonner’s

physical custody of petitioner’s son exceeded petitioner’s during

1998.   Consequently, petitioner is not considered to be his son’s

custodial parent for that year.    Petitioner’s son, therefore, is

not treated as having received over half of his support from

petitioner and does not fit within the definition of a dependent

for purposes of the dependency exemption deduction here in

dispute.    It follows that petitioner is not entitled to a

dependency exemption deduction for his son for 1998, and

respondent’s determination disallowing that deduction is

sustained.
                                 - 8 -

     From his presentation at trial, we are satisfied that

petitioner understands that his entitlement to the child tax

credit claimed on his 1998 return depends upon his entitlement to

the dependency exemption deduction claimed for his son.       For

1998, petitioner’s son is not petitioner’s qualifying child for

purposes of the child tax credit because petitioner is not

entitled to a dependency exemption deduction for his son for that

year.   See sec. 24(a), (c).   Respondent’s disallowance of the

child tax credit claimed on petitioner’s 1998 return is

sustained.

     Reviewed and adopted as the report of the Small Tax Case

Division.

     To reflect the foregoing,

                                         Decision will be entered

                                 for respondent.
