                          T.C. Memo. 2003-33



                       UNITED STATES TAX COURT



                    SCOTT DAVID DUBY, Petitioner v.
             COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 6765-02.              Filed February 13, 2003.


     Scott David Duby, pro se.

     Robert B. Taylor, for respondent.



                          MEMORANDUM OPINION


     WOLFE, Special Trial Judge:    Respondent determined a

deficiency of $2,310 in petitioner’s 1999 Federal income tax

liability.    The issue for decision is whether petitioner is

entitled to dependency exemption deductions for his three

children on his 1999 income tax return (tax return).    Unless

otherwise indicated, all section references are to the Internal
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Revenue Code in effect at relevant times, and all Rule references

are to the Tax Court Rules of Practice and Procedure.

                             Background

     Scott David Duby (petitioner) and Monica Aguirre Duby

(Aguirre) were divorced on May 27, 1997, pursuant to the Decree

of Dissolution of Marriage (divorce decree) issued by the

Superior Court of the State of Arizona in and for the County of

Maricopa (divorce court).    The divorce decree provides that

Aguirre receive sole legal and physical custody of the three

children:    Victoria Amber Duby, born July 5, 1985 (Victoria);

Christopher Scott Duby, born November 1, 1988 (Christopher); and

Monica Andrea Duby, born July 1, 1993 (Monica) (collectively, the

children).    In support of the custody award the divorce decree

recites that during prior separation petitioner did little to

seek out and exercise visitation on his own and that the children

complained that petitioner did not return their telephone calls.

The divorce court concluded that awarding custody to Aguirre was

in the children’s best interest.

     The divorce decree provides for Aguirre to claim Victoria as

a dependent.    Under the divorce decree petitioner may become

entitled to claim Christopher and Monica as dependents “provided

he is current in his child support obligation for that year and

child support arrearage payments on December 31 of the applicable

year”.   The divorce decree states that if petitioner satisfies
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his current child support and child support arrearage

obligations, Aguirre “shall execute the necessary I.R.S. forms to

transfer the exemption” to petitioner.

     Subsequently, on July 1, 1999, there was an evidentiary

hearing concerning custody at which petitioner was present and

represented by counsel, but Aguirre was neither present nor

represented by counsel.   After this hearing the divorce court

issued an order in open court on September 10, 1999, nunc pro

tunc to July 27, 1999 (temporary child custody order), granting

temporary custody of the children to petitioner. The temporary

child custody order states that “apparently, the Mother

[Aguirre], has taken the children, and he [petitioner] is not

able to exercise his visitation at the present time”, and that

Aguirre was in violation of a prior visitation order.1

     On his 1999 Federal income tax return, petitioner claimed

dependency exemption deductions for the three children.   He did

not attach to that tax return a copy of Form 8332, Release of

Claim to Exemption for Child of Divorced or Separated Parents, or

any statement conforming to the substance of Form 8332.


     1
        Petitioner contends that Aguirre is involved with a cult
and has abducted the children to Mexico. These allegations are
not disputed by respondent. However, this Court is a court of
limited jurisdiction. Sec. 7442. “We may only exercise
jurisdiction to the extent expressly permitted by Congress.”
Judge v. Commissioner, 88 T.C. 1175, 1180-1181 (1987). A remedy
for the alleged abduction of petitioner’s children is beyond this
Court’s jurisdiction, and, accordingly, we have not considered
this matter further.
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Respondent issued a Notice of Deficiency, dated January 11, 2002,

disallowing the dependency exemption deductions claimed for the

children.   Petitioner filed a petition with this Court on March

26, 2002, while residing in Morristown, Arizona, and an amended

petition on May 29, 2002, while residing in Phoenix, Arizona, and

respondent filed his Answer to Amended Petition on June 17, 2002.

                            Discussion

     Generally, section 151(c)(1) allows a taxpayer to deduct an

exemption amount for each child of the taxpayer who is a

dependent as defined in section 152.     Under section 152(a), the

term “dependent” means certain individuals over half of whose

support was received from the taxpayer during the calendar year

for which such individuals are claimed as dependents.    Eligible

individuals who may be claimed as dependents include, among

others, the sons and daughters of the taxpayer.    Sec. 152(a)(1).

     Special rules establish which parent may claim a minor child

as a dependent where the parents are divorced or separated.    See

sec. 152(e).   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 greatest portion of the

year) is treated as having provided over half of the child’s

support for the year, and that parent may deduct the exemption

amount with respect to such child for the year.    Sec. 152(e)(1).
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There is no dispute that this rule is applicable in this case.

In applying section 152(e)(1) custody “will be determined by the

terms of the most recent decree of divorce or separate

maintenance, or subsequent custody decree”.    Sec. 1.152-4(b),

Income Tax Regs. (emphasis added).

     The “noncustodial parent” may claim the child as a dependent

if any one of the following statutory exceptions is satisfied:

(1) Pursuant to section 152(e)(2), the custodial parent signs a

written declaration that such custodial parent will not claim

such child as a dependent, and the noncustodial parent attaches

such written declaration to the noncustodial parent’s return for

the taxable year; (2) pursuant to section 152(e)(3), there is a

multiple support agreement between the parties as provided in

section 152(c); or (3) pursuant to section 152(e)(4), there is a

qualified pre-1985 instrument providing that the noncustodial

parent shall be entitled to any deduction allowable under section

151 for such child.   Sec. 152(e).   The declaration required under

section 152(e)(2) must be made either on a completed Form 8332 or

on a statement conforming to the substance of Form 8332.   See

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

another ground sub nom. Lovejoy v. Commissioner, 293 F.3d 1208

(10th Cir. 2002); sec. 1.152-4T(a), Q&A-3, Temporary Income Tax
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Regs., 49 Fed. Reg. 34459 (Aug. 31, 1984).2

     The divorce decree, in effect since 1997, granted Aguirre

sole custody of the children until the divorce court granted

petitioner temporary custody, in a subsequent custody decree,

actually issued on September 10, 1999, and purportedly effective

as of July 27, 1999.3   Although petitioner did not have physical

custody of the children, the child custody order provided

petitioner with temporary custody for the balance of the year

(July 27, 1999 to Dec. 31, 1999).   Petitioner himself admitted:

“I don’t meet the six months criteria”.   Since Aguirre had

custody for the greater portion of the year, Aguirre is the

custodial parent for 1999.   Accordingly, Aguirre is entitled to

claim the dependency exemption deductions for the children unless

one of the three exceptions in section 152 applies.    See Miller

v. Commissioner, supra at 188; see also Cafarelli v.


     2
        Temporary regulations are entitled to the same weight as
final regulations. Peterson Marital Trust v. Commissioner, 102
T.C. 790, 797 (1994), affd. 78 F.3d 795 (2d Cir. 1996); Truck &
Equip. Corp. v. Commissioner, 98 T.C. 141, 149 (1992).
     3
        The parties filed a Stipulation of Facts stating that the
change of custody took place on July 1, 1999. However, although
the hearing was conducted on July 1, 1999, the divorce court
issued the child custody order, transferring custody to
petitioner, on Sept. 10, 1999, nunc pro tunc to July 27, 1999.
While stipulations are not to be set aside lightly, the Court is
not bound by stipulations of fact that appear contrary to the
facts disclosed by the record. See Rule 91(e); Estate of Eddy v.
Commissioner, 115 T.C. 135, 137 n.4 (2000) (citing Blohm v.
Commissioner, 994 F.2d 1542, 1553 (11th Cir. 1993), affg. T.C.
Memo. 1991-636). At the earliest, the change of custody occurred
on July 27, 1999.
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Commissioner, T.C. Memo. 1994-265 (holding that because the

divorce decree granted custody to the dependent children’s

mother, the mother was the custodial parent entitled to the

dependency exemption deductions unless the noncustodial parent

father met one of the three statutory exceptions).

     Because petitioner did not attach to his tax return for 1999

the necessary declaration to release the dependency exemption

deductions to him as the noncustodial parent, and because there

was neither a multiple support agreement nor a pre-1985

instrument for the year in issue, none of the statutory

exemptions in section 152(e) applies.       Therefore, petitioner is

not entitled to the dependency exemption deductions for the

children for 1999.

     To reflect the foregoing,

                                              Decision will be

                                         entered for respondent.
