                  T.C. Summary Opinion 2003-147



                     UNITED STATES TAX COURT



    PHILLIP JAMES BURKE AND GAIL AGNES STOREY, Petitioners v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 6182-02S.            Filed October 3, 2003.


     James E. Schneider, for petitioners.

     Sylvia L. Shaughnessy, for respondent.




     PAJAK, 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 petitioners’ 1999

Federal income tax in the amount of $3,310.   The Court must

decide whether petitioner Phillip James Burke (petitioner) has a

release from the custodial parent so that he is entitled to

claimed dependency exemption deductions for his three children.

     Some of the facts in this case have been stipulated and are

so found.   Petitioners resided in San Diego, California, when

their petition was filed.   Section 7491 does not apply because

this case involves a legal issue.

     Prior to his marriage to petitioner Gail Agnes Storey,

petitioner was married to Dorothy Burke (Ms. Burke).

     Pursuant to a Judgment of Dissolution of Marriage (divorce

decree) entered by the Superior Court of California, County of

Los Angeles, petitioner and Ms. Burke were divorced on June 26,

1991.

     At the time of their divorce, petitioner and Ms. Burke had

three minor children, Brian, Megan, and Kathryn.   Primary

physical custody of the three minor children was awarded to Ms.

Burke, with certain periods of physical custody awarded to

petitioner.

     The divorce decree contains the following provision:

     Petitioner is awarded the tax deduction for the children for
     which support is being paid until such time as Respondent
     [Ms. Burke] can provide evidence that her direct
     contribution to their support exceeds that of Petitioner,
     determination to be based on IRS guidelines.
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     Both petitioner and Ms. Burke signed the divorce decree on

May 29, 1991.

     On line 6d of their 1999 joint Federal income tax return,

petitioners claimed a total of five exemptions, two personal

exemptions and three dependency exemptions for petitioner’s three

children from his previous marriage to Ms. Burke.

     Petitioners did not attach a Form 8332, Release of Claim to

Exemption for Child of Divorced or Separated Parents, to their

1999 Federal income tax return.

     Ms. Burke was the custodial parent of her three children

during 1999.    Ms. Burke claimed dependent exemptions for each of

her three children on her 1999 Federal income tax return.

Respondent allowed the dependent exemptions claimed by Ms. Burke

as the custodial parent.

     Respondent issued a statutory notice of deficiency to

petitioners disallowing the three claimed dependency exemptions.

     Section 151(c) allows a taxpayer to deduct an annual

exemption amount for each dependent, as defined in section 152.

Under section 152(a), the term “dependent” means, in pertinent

part, a son or daughter of the taxpayer over half of whose

support was received from the taxpayer.   Sec. 152(a)(1).

     In the case of a child of divorced parents, section

152(e)(1) provides in pertinent part that if a child receives

over half of his support from his parents who are divorced under
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a decree of divorce and the child is in the custody of one or

both of his parents for more than one-half of the year, then the

child will be treated as receiving over half of his support from

the parent having custody for a greater portion of the calendar

year.

     Petitioner, as the “noncustodial parent”, is allowed to

claim the children as dependents only if one of three statutory

exceptions in section 152(e) applies.   If an exception applies,

the “noncustodial parent” is treated as providing over half of a

child’s support.    We focus on section 152(e)(2), the exception on

which petitioner relies.

     Section 152(e)(2) applies if “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.

     Section 1.152-4T(a), Q&A-3, Temporary Income Tax Regs., 49

Fed. Reg. 34459 (Aug. 31, 1984), provides 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.”

The declaration required under section 152(e)(2) must be made on
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a completed Form 8332 or otherwise conform to the substance of

Form 8332.    Sec. 1.152-4T(a), Q&A-3, Temporary Income Tax Regs.,

supra.    The exemption may be released for a single year, for a

number of specified years, or for all future years, as specified

in the declaration.    Sec. 1.152-4T(a), Q&A-4, Temporary Income

Tax Regs.

     Petitioner attached a statement and “a copy of the

applicable pages of the divorce decree” to his 1999 income tax

return.    Petitioner, the noncustodial parent, claimed the

dependency exemptions for his minor children for the year in

issue pursuant to a provision in the divorce decree, which stated

that petitioner “is awarded the tax deduction for the children

for which support is being paid until such time as Respondent

[Ms. Burke] can provide evidence that her direct contribution to

their support exceeds that of Petitioner, determination to be

based on IRS guidelines.”

     Petitioner claims that his statement (including the

attachment) constitutes a declaration which conforms to the

substance of Form 8332.    Respondent’s position is that the

statement does not conform to the substance of Form 8332.      We

agree with respondent.

     We hold that petitioner is not entitled to claim the

exemptions in question because the statement does not state

unconditionally that Ms. Burke will not claim the children as
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exemptions, or otherwise conform to the substance of Form 8332,

as required by the applicable regulations.     Sec. 152(e)(2)(A);

Horn v. Commissioner, T.C. Memo. 2002-290; Cafarelli v.

Commissioner, T.C. Memo. 1994-265; White v. Commissioner, T.C.

Memo. 1996-438.   In fact, Ms. Burke claimed the three exemptions

for her children on her 1999 income tax return.     We also note

that the statement does not conform with Form 8332 because it

does not expressly set forth the name of each of the three

children, although Kathryn is mentioned in another provision, and

because it does not specify the year, years, or all future years.

Miller v. Commissioner, 114 T.C. 184, 191-192 (2000).     Lastly,

the statement is not an unrestricted release of the exemptions to

petitioner because it is conditioned on a support test.

     Reviewed and adopted as the report of the Small Tax Case

Division.

                                            Decision will be entered

                                       for respondent.
