                  T.C. Summary Opinion 2003-30



                     UNITED STATES TAX COURT



               JEFFREY S. LINDQUIST, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 5602-01S.             Filed March 27, 2003.


     Jeffrey S. Lindquist, pro se.

     Julia L. Wahl, for respondent.



     PANUTHOS, Chief 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.    The

decision to be entered is not reviewable by any other court, and

this opinion should not be cited as authority.   Unless otherwise

indicated, subsequent section references are to the Internal

Revenue Code in effect for the year in issue.
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     Respondent determined a deficiency in petitioner’s Federal

income tax of $1,050 for the taxable year 1998.

     The issues for decision are:    (1) Whether petitioner is

entitled to a deduction for a dependency exemption for his son

and (2) whether petitioner is entitled to claim a child tax

credit.

Background

     Some of the facts have been stipulated, and they are so

found.    The stipulation of facts and the attached exhibits are

incorporated herein by this reference.    At the time of filing the

petition herein, petitioner resided at Kane, Pennsylvania.

     Petitioner was previously married to Cara Leanne Lindquist

(Ms. Lindquist).    They had a child, Justin Lindquist (Justin),

born June 3, 1991.    On April 22, 1996, petitioner and Ms.

Lindquist entered into a “Marital Termination Agreement”, which

provided in part:

          10. Beginning in calendar year 1996, and for so
     long as the child of the parties is eligible to be
     claimed as a dependent/exemption for state and federal
     income tax purposes, [petitioner] may claim the
     parties’ son, Justin Scott Lindquist, as a
     dependent/exemption. Provided that [petitioner] is
     current in the child support obligation as provided for
     herein, [Ms. Lindquist] shall execute any and all
     documents provided to [Ms. Lindquist] by [petitioner]
     as are necessary for [petitioner] to successfully claim
     said child as a dependent/exemption.

     Petitioner and Ms. Lindquist were divorced on June 27, 1997,

pursuant to the “Findings of Fact, Conclusions of Law, Order for
                               - 3 -

Judgment and Judgment and Decree of Dissolution” (divorce decree)

by the District Court of the Third Judicial District for Mower

County, Minnesota (Mower County district court).   Under the

divorce decree, they were granted joint legal custody of Justin,

while Ms. Lindquist was granted sole physical custody.   Similar

to the “Marital Termination Agreement”, the divorce decree also

provided:

          8. That beginning in calendar year 1997, and for
     so long as the child of the parties is eligible to be
     claimed as a dependent/exemption for state and federal
     income tax purposes, [petitioner] may claim the
     parties’ son, Justin Scott Lindquist, as a
     dependent/exemption. Provided that [petitioner] is
     current in the child support obligation as provided for
     herein, [Ms. Lindquist] shall execute any and all
     documents provided to [Ms. Lindquist] by [petitioner]
     as are necessary for [petitioner] to successfully claim
     said child as a dependent/exemption.


     Petitioner filed a 1998 Federal income tax return (return).

Petitioner claimed a dependency exemption for Justin and claimed

a child tax credit in the amount of $400.1   Petitioner did not

attach to his return a written declaration executed by Ms.

Lindquist.   Nor did petitioner ask Ms. Lindquist to sign a Form

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

Separated Parents, for the taxable year 1998 since he believed

that she would not execute the required form.   Petitioner further

concluded that it would be unrealistic for him, as a resident of


     1
       According to respondent, Ms. Lindquist also claimed a
dependency exemption for Justin for the 1998 taxable year.
                                 - 4 -

Pennsylvania, to return to the Mower County district court in

Minnesota to seek enforcement of the terms of the divorce decree.

     In the notice of deficiency, respondent disallowed the

dependency exemption deduction for Justin and disallowed the

child tax credit claimed by petitioner for the 1998 taxable year.

Discussion

     1.   Dependency Exemption

     A taxpayer may be entitled to claim as a deduction an

exemption amount for each of his or her dependents.   Sec. 151(c).

An individual must meet the following five tests in order to

qualify as a dependent of the taxpayer:   (1) Support test, (2)

relationship or household test, (3) citizenship or residency

test, (4) gross income test, and (5) joint return test.     Secs.

151 and 152.   If the individual fails any of these tests, he or

she does not qualify as a dependent.

     As to the support test, the taxpayer generally must provide

more than half of a claimed dependent’s support for the calendar

year in which the taxable year of the taxpayer begins.    Sec.

152(a).   In the case of a child of divorced parents, the

custodial parent is generally deemed to have furnished over half

the support of such child and is thus permitted the dependency

exemption.   However, an exception arises when the custodial

parent releases claim to the exemption pursuant to the provisions

of section 152(e)(2), which provides:
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     SEC. 152(e). Support Test in Case of Divorced Parents,
     Etc.--

              *     *     *     *     *     *      *

          (2) Exception where custodial parent releases
     claim to exemption for the year.--A child of parents *
     * * shall be treated as having received over half of
     his support during a calendar year from the
     noncustodial parent if--

               (A) the custodial parent signs a written
          declaration (in such manner and form as the
          Secretary may by regulations prescribe) that
          such custodial parent will not claim such
          child as a dependent for any taxable year
          beginning in such calendar year, and

               (B) the noncustodial parent attaches
          such written declaration to the noncustodial
          parent’s return for the taxable year
          beginning during such calendar year.

     For purposes of this subsection, the term “noncustodial
     parent” means the parent who is not the custodial
     parent.

     The temporary regulations promulgated with respect to

section 152(e) provide that a noncustodial parent may claim the

exemption for a dependent child “only if the noncustodial parent

attaches to his/her income tax return for the year of the

exemption a written declaration from the custodial parent stating

that he/she will not claim the child as a dependent for the

taxable year beginning in such calendar year.”2   Sec. 1.152-

4T(a), Q&A-3, Temporary Income Tax Regs., 49 Fed. Reg. 34459


     2
       Temporary regulations are entitled to the same weight as
final regulations. See 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).
                               - 6 -

(Aug. 31, 1984); see Miller v. Commissioner, 114 T.C. 184, 188-

189 (2000), affd. on another ground sub nom. Lovejoy v.

Commissioner, 293 F.3d 1208 (10th Cir. 2002).   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.   Miller v. Commissioner, supra at 189.

     Form 8332 requires a taxpayer to furnish (1) the names of

the children for which exemption claims were released, (2) the

years for which the claims were released, (3) the signature of

the custodial parent confirming his or her consent, (4) the

Social Security number of the custodial parent, (5) the date of

the custodial parent’s signature, and (6) the name and the Social

Security number of the parent claiming the exemption.      Miller v.

Commissioner, supra at 190.

      Petitioner did not comply with the provisions of section

152(e)(2) and the regulations thereunder by attaching to his

return a written declaration or Form 8332 executed by Ms.

Lindquist.   Petitioner, as a noncustodial parent, is not entitled

to the dependency exemption for Justin for the 1998 taxable year.

     Petitioner nevertheless argues that he is current in his

child support obligation and that, under the terms of the Marital

Termination Agreement and divorce decree, he is entitled to the

dependency exemption.   He further points out that it is

unrealistic for him, as a resident of Pennsylvania, to return to
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the Mower County district court in Minnesota to seek enforcement

of the terms of the divorce decree.

     We are not unsympathetic to petitioner’s position.        However,

we are bound by the language of the statute as it is written and

the accompanying regulations, when consistent therewith.

Michaels v. Commissioner, 87 T.C. 1412, 1417 (1986).         The

Internal Revenue Code is clear as to the precise circumstance in

which a noncustodial parent becomes entitled to a dependency

exemption.   See Neal v. Commissioner, T.C. Memo 1999-97.

Respondent is sustained on this issue.

     2.   Child Tax Credit

     A taxpayer may be entitled to claim a credit against tax

with respect to each “qualifying child”.       Sec. 24(a).   The term

“qualifying child” is defined, among other things, as any

individual if “the taxpayer is allowed a deduction under section

151 with respect to such individual for the taxable year”.         Sec.

24(c)(1)(A).   For the reasons stated above, petitioner is not

entitled to a dependency exemption deduction under section 151

with respect to Justin.   It therefore follows that petitioner is

not entitled to a child tax credit under section 24(a).

     Reviewed and adopted as the report of the Small Tax Case

Division.

     To reflect the foregoing,

                                              Decision will be entered

                                         for respondent.
