                                             MICHAEL KEITH SHENK, PETITIONER v. COMMISSIONER
                                                    OF INTERNAL REVENUE, RESPONDENT

                                                        Docket No. 5706–12.                            Filed May 6, 2013.

                                                  P was divorced from his wife, and their 2003 ‘‘Judgment of
                                               Absolute Divorce’’ provided that his ex-wife would have pri-
                                               mary residential custody of their three minor children. The
                                               judgment provided that the dependency exemption deductions
                                               for the three children would be divided between the two ex-
                                               spouses according to various conditions but did not provide
                                               that the ex-wife must execute in P’s favor a Form 8332,
                                               ‘‘Release of Claim to Exemption for Child of Divorced or Sepa-
                                               rated Parents’’. The children resided with P’s ex-wife for more
                                               than half of 2009, and P’s ex-wife did not execute in P’s favor
                                               any Form 8332 or equivalent document for any year. For 2009
                                               P timely filed a Federal income tax return on which he
                                               claimed dependency exemption deductions and the child tax
                                               credit for two of the children, consistent with his under-
                                               standing of the terms of the judgment, but he did not attach
                                               any Form 8332 to his return. He also claimed head-of-house-
                                               hold filing status. His ex-wife, the custodial parent, timely
                                               filed a Federal income tax return for 2009 on which she also

                                      200




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                                               claimed two dependency exemption deductions, so that one
                                               child was claimed on both parents’ returns. R allowed to P the
                                               dependency exemption deduction for one of the children but
                                               disallowed his claim for the dependency exemption deduction
                                               for the child who had also been claimed by the custodial
                                               parent. At trial P contended he is entitled to a dependency
                                               exemption deduction for all three children. Held: Since the
                                               custodial parent did not execute, and P could not and did not
                                               attach to his return, any Form 8332 or equivalent release, P
                                               is not entitled under I.R.C. sec. 152(e)(2)(A) to claim the
                                               dependency exemption deduction or the child tax credit. Held,
                                               further, where both the custodial parent and the noncustodial
                                               parent have claimed for the same year a dependency exemp-
                                               tion deduction for the same child, a declaration signed by the
                                               custodial parent after the period of limitations for assess-
                                               ments has expired as to the custodial parent could not qualify
                                               under I.R.C. sec. 152(e)(2)(A), and therefore there is no reason
                                               to grant P’s request to leave the record open so that he may
                                               obtain and proffer such a declaration. Held, further, P is not
                                               entitled to head-of-household filing status under I.R.C. sec.
                                               2(b)(1) nor to the child tax credit under I.R.C. sec. 24.

                                           Michael Keith Shenk, for himself.
                                           Shari Salu, for respondent.
                                         GUSTAFSON, Judge: The Internal Revenue Service (IRS)
                                      determined a deficiency of $3,136 in the 2009 Federal income
                                      tax of petitioner Michael Keith Shenk. Mr. Shenk petitioned
                                      this Court, pursuant to section 6213(a), 1 for redetermination
                                      of the deficiency. After Mr. Shenk’s concession that he
                                      received but did not report $254 in dividend income, the
                                      issue for decision is whether Mr. Shenk is entitled to a
                                      dependency exemption deduction for one of his children
                                      under section 151(c), a child tax credit for that child under
                                      section 24(a), and head-of-household filing status under sec-
                                      tion 2(b)(1). On these issues, we hold for the IRS.
                                                                          FINDINGS OF FACT

                                      The judgment of divorce
                                        Mr. Shenk was married to Julie Phillips, and they have
                                      three minor children—M.S., W.S., and L.S. They divorced in
                                      2003. The family court’s ‘‘Judgment of Absolute Divorce’’ pro-
                                         1 Unless otherwise indicated, all citations of sections refer to the Internal

                                      Revenue Code (26 U.S.C.) in effect for the tax year at issue, and all cita-
                                      tions of Rules refer to the Tax Court Rules of Practice and Procedure.




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                                      vided: that Ms. Phillips was ‘‘awarded primary residential
                                      custody’’ of the parties’ three children; and that Mr. Shenk
                                      would be liable for child support payments; but that, as to
                                      dependency exemptions—
                                           [I]n 2003, and in odd numbered years thereafter, provided that she is
                                           employed and earning income, defendant [Ms. Phillips] shall be entitled
                                           to claim the parties’ two younger children, W[ ] and L[ ], as dependency
                                           exemptions on her income tax returns; and, assuming he is current with
                                           his child support payments as of the end of the year, plaintiff [Mr.
                                           Shenk] shall be entitled in 2003, and in odd numbered years thereafter,
                                           to claim the parties’ oldest son, M[ ], as a dependency exemption on his
                                           income tax returns. In even numbered years, the parties’ entitlement to
                                           the foregoing dependency exemptions shall be reversed, with plaintiff
                                           having two exemptions and defendant having one, again assuming that
                                           defendant is employed and earning income and plaintiff is current with
                                           his child support payments at the end of the year in question * * *.
                                           [Emphasis added.]

                                      The IRS admits that this paragraph makes Ms. Phillips’s
                                      entitlement to the dependency exemptions to be contingent
                                      on her being employed. Mr. Shenk further contends, and we
                                      assume, that this paragraph is properly interpreted to allow
                                      a parent who does meet his or her condition (i.e., employ-
                                      ment in the case of Ms. Phillips, and child support in the
                                      case of Mr. Shenk) to claim the dependency exemptions that
                                      would otherwise be allowed to a parent who fails to meet his
                                      or her condition.
                                        The judgment states no requirement that Ms. Phillips
                                      facilitate Mr. Shenk’s claim of dependency exemptions by
                                      executing a release (such as on Form 8332, ‘‘Release of Claim
                                      to Exemption for Child of Divorced or Separated Parents’’).
                                      The judgment was not formatted in such a way as to require
                                      or permit the parties to sign it, and neither Ms. Phillips nor
                                      Mr. Shenk signed the judgment.
                                      2009 tax returns
                                        In 2009 all three children resided with Ms. Phillips more
                                      than 50% of the time. As of the end of 2009 Mr. Shenk was
                                      up to date on his child support payments. Mr. Shenk con-
                                      tends, and we assume, that Ms. Phillips was not employed
                                      in 2009.
                                        Nonetheless, on a joint return filed with her then-current
                                      husband on April 15, 2010, Ms. Phillips reported income.




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                                      (The return is not in our record, but we assume she reported
                                      non-employment income.) Because 2009 was an odd-num-
                                      bered year, she also claimed two dependency exemption
                                      deductions for W.S. and L.S.
                                        However, consistent with his understanding of the
                                      meaning of the judgment of divorce, Mr. Shenk did not limit
                                      himself to claiming a dependency exemption deduction for
                                      M.S. Instead, on his return for 2009 Mr. Shenk claimed two
                                      such deductions—for M.S. and L.S.—because he believed Ms.
                                      Phillips had not been employed in 2009 and therefore did not
                                      meet the conditions for claiming dependency exemptions. (He
                                      argued at trial that his claim of only two exemptions was a
                                      mistake and that he should instead have claimed all three.)
                                      He also claimed the corresponding child tax credit, and he
                                      claimed head-of-household filing status.
                                      Disallowance by the IRS
                                         Because L.S. was thus claimed as a dependent on two
                                      returns, the IRS became aware of the dueling claims. The
                                      IRS allowed Ms. Phillips’s return to stand, leaving her with
                                      two dependency exemption deductions; and it disallowed one
                                      of the dependency exemption deductions claimed on Mr.
                                      Shenk’s return. On January 18, 2012, the IRS issued to Mr.
                                      Shenk a notice of deficiency for 2009, determining additional
                                      tax attributable to denying that second dependency exemp-
                                      tion deduction, the child tax credit, and head-of-household
                                      filing status.
                                      Court proceedings
                                        On March 2, 2012, Mr. Shenk timely filed his petition in
                                      this Court. At the time he filed his petition, Mr. Shenk
                                      resided in Maryland. A year later, when this case was called
                                      from the calendar for trial on March 4, 2013, Mr. Shenk
                                      asked for a continuance so that he could request the family
                                      court to revise its judgment of divorce to require Ms. Phillips
                                      to execute Form 8332 in his favor, and so that he could then
                                      perfect his claim for the dependency exemption deductions by
                                      proffering that Form 8332. Respondent’s counsel stated that
                                      a Form 8332 may be effectively submitted even after the
                                      return has been filed, but argued that it must be submitted
                                      in time to allow the IRS to disallow a dependency exemption




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                                      204                 140 UNITED STATES TAX COURT REPORTS                                   (200)


                                      deduction that was redundantly claimed by the custodial
                                      parent who executes Form 8332. Because the three-year
                                      period of limitations to assess any tax against Ms. Phillips
                                      on her 2009 return, see sec. 6501(a), presumably would
                                      expire April 15, 2013—i.e., six weeks after this case was
                                      called for trial—respondent’s counsel contended that, even if
                                      Mr. Shenk were successful in his attempt at obtaining a
                                      release, the IRS would be prejudiced by any delay and would
                                      be unable to assess any tax against Ms. Phillips.
                                         Because Mr. Shenk made no accounting for his having
                                      waited a year to try to obtain Form 8332, the Court denied
                                      Mr. Shenk’s motion for a continuance, stating that the par-
                                      ties should ‘‘go ahead and have today the trial that you are
                                      ready to have now, to put on the evidence you have to put
                                      on now,’’ and that the Court would then ‘‘entertain at the end
                                      of it whatever motion you want to make about keeping the
                                      record open.’’ Mr. Shenk put on his case and contended he
                                      is entitled to a dependency exemption deduction for all three
                                      children. At the end of trial, he again moved that the record
                                      be left open so that he could obtain and offer a Form 8332
                                      signed by his ex-wife for 2009. We denied the motion without
                                      prejudice and stated that we would delay issuing any opinion
                                      in the case until after April 15, 2013, in order to give Mr.
                                      Shenk the opportunity to obtain the Form 8332, if he could,
                                      and to move to reopen the record of this case by that date.
                                      He did not do so.

                                                                                  OPINION

                                      I. The dependency exemption deduction
                                           A. The provisions of section 152
                                         An individual is allowed a deduction for an exemption for
                                      ‘‘each individual who is a dependent (as defined in section
                                      152) of the taxpayer for the taxable year.’’ Sec. 151(c). Sec-
                                      tion 152(a) defines the term ‘‘dependent’’ to include ‘‘a quali-
                                      fying child’’. Generally, a ‘‘qualifying child’’ must: (i) bear a
                                      specified relationship to the taxpayer (e.g., be a child of the
                                      taxpayer), (ii) have the same principal place of abode as the
                                      taxpayer for more than one-half of such taxable year, (iii)
                                      meet certain age requirements, (iv) not have provided over
                                      one-half of such individual’s support for the taxable year at




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                                      (200)                          SHENK v. COMMISSIONER                                        205


                                      issue; and (v) not have filed a joint return for that year. Sec.
                                      152(c)(1). Under those provisions, Mr. Shenk could not claim
                                      his children as dependents for 2009 because, as he admits,
                                      they did not share the same place of abode with him for more
                                      than one-half of the year.
                                         However, in the case of divorced parents, special rules
                                      determine which parent may claim a dependency exemption
                                      deduction for a child. See sec. 152(e); Espinoza v. Commis-
                                      sioner, T.C. Memo. 2011–108; cf. sec. 152(c)(4). Pursuant to
                                      section 152(e), when certain criteria are met, a child may be
                                      treated as a qualifying child of the noncustodial parent (here,
                                      Mr. Shenk) rather than of the custodial parent (Ms. Phil-
                                      lips). 2 Sec. 152(e)(1); 26 C.F.R. sec. 1.152–4, Income Tax
                                      Regs. The child could be the qualifying child of Mr. Shenk,
                                      under section 152(e)(1) and (2), if—
                                      • The ‘‘child receives over one-half of the child’s support
                                      during the calendar year from the child’s parents * * * who
                                      are divorced * * * under a decree of divorce’’, sec.
                                      152(e)(1)(A);
                                      • such child was ‘‘in the custody of 1 or both of the child’s
                                      parents for more than one-half of the calendar year’’, sec.
                                      152(e)(1)(B);
                                      • ‘‘the custodial parent signs a written declaration (in such
                                      manner and form as the Secretary may by regulations pre-
                                      scribe) that such custodial parent will not claim such child
                                      as a dependent for any taxable year beginning in such cal-
                                      endar year’’, sec. 152(e)(2)(A); and
                                      • ‘‘the noncustodial parent attaches such written declaration
                                      to the noncustodial parent’s return’’ for the appropriate tax-
                                      able year, sec. 152(e)(2)(B).
                                           B. The lack of a declaration
                                        Mr. Shenk’s claim in this case fails because he is unable
                                      to show compliance with the third and fourth of the statutory
                                      criteria stated above—i.e., Ms. Phillips did not ever sign a
                                      declaration that she ‘‘will not claim such child as a
                                           2 For
                                              these purposes, Ms. Phillips was the child’s custodial parent and
                                      Mr. Shenk was the child’s noncustodial parent, because the State court or-
                                      ders gave Ms. Phillips ‘‘primary residential custody’’ of their children. See
                                      sec. 152(e)(4); 26 C.F.R. sec. 1.152–4(d), Income Tax Regs.




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                                      206                 140 UNITED STATES TAX COURT REPORTS                                   (200)


                                      dependent’’, and Mr. Shenk did not ‘‘attach[ ] such written
                                      declaration to’’ his return.
                                         The IRS’s prescribed means for the noncustodial parent to
                                      make this declaration is Form 8332, on which the relevant
                                      statement is ‘‘I agree not to claim’’. But whether made on
                                      that form or by an equivalent document, 3 a basic element
                                      necessary for satisfying section 152(e)(2)(A) is a custodial
                                      parent’s declaration that (in the words of the statute) she
                                      ‘‘will not claim’’ the child as a dependent for a taxable year.
                                      Ms. Phillips never signed any declaration that she would not
                                      claim a dependency exemption deduction.
                                         Mr. Shenk contends that under the conditions set out in
                                      the State court judgment of divorce, Ms. Phillips was not
                                      entitled to the disputed dependency exemption deduction,
                                      and he implicitly argues that she should have executed a
                                      declaration disclaiming and releasing the exemption. How-
                                      ever, section 152(e) requires that a declaration be ‘‘sign[ed]’’.
                                      The IRS stipulates that Mr. Shenk met the condition of the
                                      judgment (i.e., he was up-to-date with his child support pay-
                                      ments); and we assume, as Mr. Shenk contends, that Ms.
                                      Phillips did not meet the condition imposed on her by the
                                      judgment, so that as far as the State court was concerned,
                                      Mr. Shenk was entitled to the disputed deduction. But ulti-
                                      mately it is the Internal Revenue Code and not State court
                                      orders that determine one’s eligibility to claim a deduction
                                      for Federal income tax purposes, and Mr. Shenk does not
                                      meet the criteria of the Code for claiming the disputed
                                      dependency exemption deduction. He is the noncustodial
                                         3 A noncustodial parent may rely on an alternative document, provided

                                      that it ‘‘conform[s] to the substance’’ of Form 8332. 26 C.F.R. sec. 1.152–
                                      4(e)(1)(ii), Income Tax Regs. Form 8332 requires a taxpayer to furnish: the
                                      name of the child; the name and Social Security number of the noncusto-
                                      dial parent claiming the dependency exemption deduction; the Social Secu-
                                      rity number of the custodial parent; the signature of the custodial parent;
                                      the date of the custodial parent’s signature; and the year(s) for which the
                                      claims were released. For the year at issue here, a signed judgment copy
                                      of a court order cannot satisfy section 152(e)(2). See 26 C.F.R. sec. 1.152–
                                      4(e)(1)(ii) (‘‘A court order or decree or a separation agreement may not
                                      serve as a written declaration’’). Moreover, the fact that the court order en-
                                      titling Mr. Shenk to a dependency exemption deduction was explicitly con-
                                      ditional also renders that document insufficient. See Armstrong v. Commis-
                                      sioner, 139 T.C. 468 (2012); 26 C.F.R. sec. 1.152–4(e)(1)(i).




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                                      (200)                          SHENK v. COMMISSIONER                                        207


                                      parent, and the custodial parent did not sign the required
                                      declaration.
                                        As we explained in Miller v. Commissioner, 114 T.C. 184,
                                      195–196 (2000), aff ’d on other grounds sub nom. Lovejoy v.
                                      Commissioner, 293 F.3d 1208 (10th Cir. 2002), Congress
                                      added the written declaration requirement to section 152(e)
                                      in 1984 to provide more certainty to the ‘‘often subjective and
                                      * * * difficult problems of proof and substantiation’’ that
                                      accompanied dependency exemption deduction disputes
                                      under the prior statutory scheme. H.R. Rept. No. 98–432
                                      (Part 2), at 1498 (1984), 1984 U.S.C.C.A.N. 697, 1140. 4 Any
                                      rule by which Mr. Shenk could prevail here would require us
                                      to revert to resolving those ‘‘difficult problems of proof and
                                      substantiation’’ that we were supposed to leave behind with
                                      the prior scheme—in this case, not only questions about
                                      whether Mr. Shenk had fulfilled his support obligations (a
                                      question apparently easy to answer in this instance, though
                                      difficult and controversial in others), but also questions about
                                      whether Ms. Phillips was ‘‘employed and earning income’’, as
                                      the judgment required. If such questions had to be answered
                                      before one could determine the proper claimant of the
                                      dependency exemption deduction, then section 152(e) would
                                      fail of its purpose. We therefore hold that under section 152,
                                      neither W.S. nor L.S. is a qualifying child of Mr. Shenk for
                                      tax year 2009; and as a result, Mr. Shenk is not entitled to
                                      the disputed dependency exemption deductions for 2009.
                                           C. The possibility of a future declaration
                                         Mr. Shenk asked us to leave open the trial record in this
                                      case so that he could move the State court to order Ms. Phil-
                                      lips to sign a Form 8332 that he could then submit. But even
                                      if we assume (without deciding) that a custodial parent’s dec-
                                      laration submitted after the custodial parent has filed his
                                           4 The   House report stated:
                                              The present rules governing the allocations of the dependency exemp-
                                           tion are often subjective and present difficult problems of proof and sub-
                                           stantiation. * * * The committee wishes to provide more certainty by al-
                                           lowing the custodial spouse the exemption unless that spouse waives his
                                           or her right to claim the exemption. Thus, dependency disputes between
                                           parents will be resolved without the involvement of the Internal Rev-
                                           enue Service. [H.R. Rept. No. 98–432 (Part 2), at 1498–1499 (1984), 1984
                                           U.S.C.C.A.N. 697, 1140.]




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                                      return could sometimes qualify as being ‘‘attache[d] * * * to
                                      the noncustodial parent’s return’’ for purposes of section
                                      152(e)(2)(B), 5 any declaration that Mr. Shenk could now
                                      obtain and submit would fail to qualify under section
                                      152(e)(2)(A).
                                         Ms. Phillips claimed L.S. as a dependent on her 2009
                                      income tax return filed April 15, 2010—i.e., more than three
                                      years ago. Under section 6501(a), the general three-year
                                      period of limitations for assessing tax against her for 2009
                                      expired on April 15, 2013. 6 Thus, in this case the custodial
                                      parent did ‘‘claim such child as a dependent’’; the IRS did not
                                      disallow the claim; and the period of limitations for assessing
                                      tax against the custodial parent has now run. A clear pur-
                                      pose of the statute is to prevent a dependency exemption
                                      deduction for one child to be claimed by and allowed for two
                                      parents; but if Mr. Shenk could succeed at what he now pro-
                                      poses, both parents would obtain the deductions for W.S. and
                                      L.S. The statute does not permit this outcome, as we now
                                      show:
                                         If Ms. Phillips were now to sign a declaration that she
                                      ‘‘will not claim such child as a dependent’’ (or, as Form 8332
                                      would have her put it, ‘‘I agree not to claim an exemption
                                      for’’ the child), that declaration would be both contrary to fact
                                      and without legal effect. She did claim the deduction for L.S.;
                                      the IRS allowed it; and it is now evidently too late for the
                                      IRS to take it back. In order for the custodial parent to sign
                                      a meaningful declaration to the effect that she ‘‘will not
                                      claim such child as a dependent’’—i.e., that she agrees not do
                                      so in the future—she ought to make that declaration before
                                      she has filed any return claiming the child as a dependent.
                                      But if she has already filed a return claiming the child as a
                                      dependent, perhaps she could nonetheless meaningfully so
                                      declare if she does so at the time she files an amended return
                                      on which she disclaims the deduction; in that case, she
                                      agrees not to claim the exemption again. Or, if she has
                                        5 For competing views on whether a late-submitted declaration can be

                                      considered ‘‘attache[d] * * * to the noncustodial parent’s return’’, see Arm-
                                      strong v. Commissioner, 139 T.C. at 479–481 (Goeke, J., concurring), and
                                      Armstrong v. Commissioner, 139 T.C. at 481–508 (Holmes, J., dissenting).
                                      We do not resolve that issue in this Opinion.
                                        6 Mr. Shenk did not make or attempt any showing that any exception to

                                      the general rule, see sec. 6501(c), might apply.




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                                      (200)                          SHENK v. COMMISSIONER                                        209


                                      already filed a return claiming the child as a dependent and
                                      does not amend that return, perhaps her declaration could
                                      have some minimal significance if the period of limitations
                                      for assessment were still open and her statement therefore
                                      left her susceptible to having the IRS disallow her deduction
                                      and assess the corresponding tax against her; in that case,
                                      she agrees not to claim the exemption if she is challenged.
                                         But once the period of limitations for assessment has
                                      expired and the custodial parent’s claim of the child as a
                                      dependent is not susceptible to being disturbed, any state-
                                      ment by her that she ‘‘will not claim such child as a
                                      dependent’’ for that year would be absurd. The time for her
                                      to declare what she ‘‘will’’ do as to that taxable year has nec-
                                      essarily come and gone. As a logical matter and by definition,
                                      she is unable to declare what she ‘‘will’’ do about a past year
                                      now closed, so she is no longer capable of signing a declara-
                                      tion that qualifies under section 152(e)(2)(A). Consequently,
                                      even if the concept in section 152(e)(2)(B) of being ‘‘attache[d]
                                      * * * to the return’’ has enough flexibility to allow a non-
                                      custodial parent to submit a declaration at some point after
                                      the filing of his return, that flexibility must have limits—and
                                      the outside limit would surely be the custodial parent’s
                                      period of limitations. Beyond that point, any declaration that
                                      the noncustodial parent ‘‘attaches’’ fails to qualify under sec-
                                      tion 152(e)(2)(A) as a statement of what she ‘‘will’’ do.
                                      II. Child tax credit
                                         A taxpayer is entitled to a child tax credit for ‘‘each quali-
                                      fying child’’, as defined in section 152, who has not reached
                                      the age of 17 and for whom the taxpayer is allowed a depend-
                                      ency exemption deduction under section 151. Sec. 24(a),
                                      (c)(1). Given our determination that, under section 152, nei-
                                      ther W.S. nor L.S. is a ‘‘qualifying child’’ of Mr. Shenk for the
                                      year at issue and that Mr. Shenk is not allowed the depend-
                                      ency exemption deduction for either of them, it follows that
                                      Mr. Shenk is not entitled to a child tax credit for W.S. or L.S.
                                      for that year.
                                      III. Head-of-household filing status
                                        Section 1 of the Code provides different tax rates for dif-
                                      ferent taxpayers, and section 1(b) provides relatively favor-




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                                      able rates for a ‘‘head of a household (as defined in section
                                      2(b))’’. Section 2(b) in turn defines a ‘‘head of a household’’,
                                      and one of the criteria for that status is that the taxpayer
                                      ‘‘maintains as his home a household which constitutes for
                                      more than one-half of such taxable year the principal place
                                      of abode, as a member of such household, of * * * (i) a quali-
                                      fying child of the individual (as defined in section 152(c),
                                      determined without regard to section 152(e))’’. Sec. 2(b)(1)(A).
                                      Under section 152(c)(1)(B), a ‘‘qualifying child’’ must have
                                      ‘‘the same principal place of abode as the taxpayer for more
                                      than one-half of such taxable year’’; and by providing that
                                      the child’s status is determined ‘‘without regard to section
                                      152(e) [‘‘Special Rule for Divorced Parents, Etc.’’]’’, section
                                      2(b) provides that a noncustodial parent cannot meet the
                                      ‘‘principal abode’’ requirement by obtaining a declaration
                                      from the custodial parent. Rather, head-of-household status
                                      depends on having a qualifying child actually sharing the
                                      taxpayer’s place of abode for more than half of the year.
                                         Mr. Shenk admits, however, that all three of his children
                                      resided with their mother for more than half of 2009 and
                                      with him for less than half of 2009. Consequently, no quali-
                                      fying child lived with Mr. Shenk in his place of abode for
                                      more than half of that year, so he is not entitled to head-of-
                                      household filing status.
                                         In view of the foregoing,
                                                                           Decision will be entered for respondent.

                                                                               f




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