                  T.C. Summary Opinion 2004-153



                     UNITED STATES TAX COURT



                   STEED WELLS, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 19287-03S.             Filed November 8, 2004.


     Steed Wells, pro se.

     Alex Shlivko, for respondent.



     GOLDBERG, 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 $1,397 for the taxable year 2001.

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

entitled in 2001 to a dependency exemption for his child, Jude

Wells (Jude), when his estranged wife also claimed Jude as a

dependent for 2001; and (2) whether petitioner is entitled to a

child tax credit for Jude in 2001.

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

The stipulation of facts and the attached exhibits are

incorporated herein by this reference.    Petitioner resided in

Bronx, New York, on the date the petition was filed in this case.

     Petitioner timely filed a Federal income tax return for the

taxable year 2001.   Petitioner claimed single filing status on

said return.   Petitioner also claimed a dependency exemption and

child tax credit for Jude on his 2001 tax return.    The return did

not contain Form 8332, Release of Claim to Exemption for Child of

Divorced or Separated Parents, or a similar statement.    Both

petitioner and his estranged wife, Arlene Wells Kingston (Ms.

Kingston), the custodial parent of Jude, claimed Jude as a

dependent on their respective 2001 Federal income tax returns.

     In 1995, petitioner and his wife, Ms. Kingston, separated

and have continued to live separately.    On July 1, 1995, Ms.

Kingston gave birth to Jude, the couple’s child.    Jude has lived

with Ms. Kingston continuously since his birth.    On September 28,
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1998, the Family Court of the State of New York issued an order

designating Ms. Kingston to be the custodial parent of Jude.       In

said order, petitioner was required to pay Ms. Kingston $61.40

per week for child support and $39.90 per week for child care

expenses.    The order was silent as to which parent was to claim a

dependency exemption for the child for Federal income tax

purposes.

     Respondent issued a notice of deficiency to petitioner

pertaining to the 2001 taxable year.       The notice of deficiency

disallowed the dependency exemption for Jude because petitioner

failed to establish that he was entitled to a dependency

exemption.   As a result of the disallowance of the deduction,

respondent further determined that petitioner was not entitled to

the child tax credit.

                              Discussion

     A dependency exemption generally is allowed under section

151(a) for each dependent of a taxpayer.       Sec. 151(a), (c)(1).

In general, a child of a taxpayer is a dependent of the taxpayer

only if the taxpayer provides over half of the child’s support

for the taxable year.   Sec. 152(a).    A special rule applies to

taxpayer-parents (a) who are divorced, who are separated, or who

live apart for at least the last 6 months of the calendar year,

and (b) whose child is in the custody of one or both parents for

more than half of the year.    Sec. 152(e)(1).     Under this rule, if
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the child receives over half his support during the year from his

parents, the parent with custody of the child for the greater

portion of the year (the “custodial parent”) generally is treated

as having provided over half of the child’s support, regardless

of which parent actually provided the support.       Id.   Under

section 152(e)(2) an exception to this special rule exists which

may entitle the noncustodial parent to the dependency exemption.

For the exception to apply, the custodial parent must sign a

written declaration releasing his or her claim to the exemption,

and the noncustodial parent must attach the declaration to his or

her tax return.   Id.

     In addition to the exemption under section 151(a), a child

tax credit generally is allowed to a taxpayer for each qualifying

child of the taxpayer.   Sec. 24(a).      Among other requirements, a

qualifying child is an individual for whom the taxpayer is

allowed a dependency exemption under section 151.      Sec.

24(c)(1)(A).

     Petitioner admitted that he was the noncustodial parent

during the taxable year in issue.     Because petitioner did not

obtain and attach to his 2001 Federal income tax return a Form

8332 or a similar declaration signed by Ms. Kingston releasing

her exemption, petitioner is not entitled to the dependency

exemption.   Secs. 151 and 152.
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     Petitioner argues that the applicable statute allows him to

take an exemption if he proves that he provided over half of the

support for Jude.    However, petitioner incorrectly reads the

statute.    We note that we do not question whether petitioner

complied with the support and child care provisions of the order.

To be entitled to claim Jude as a dependent petitioner must

obtain the Form 8332 or a similar declaration signed by Ms.

Kingston, the custodial parent, and such document must be

attached to the return.    Sec. 152(e)(2).

     Because petitioner is not entitled to the dependency

exemption, he also is not entitled to the child tax credit.        Sec.

24(c)(1)(A).

     Reviewed and adopted as the report of the Small Tax Case

Division.

                                        Decision will be entered

                                for respondent.
