                  T.C. Summary Opinion 2005-169



                     UNITED STATES TAX COURT



     MICHAEL T. AND KATHLEEN L. SCHULTHEISS, Petitioners v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 10376-04S.         Filed November 15, 2005.


     Michael T. and Kathleen L. Schultheiss, pro sese.

     Michael J. Proto and Debra Reale, 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 when 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, all subsequent section references are to the Internal

Revenue Code in effect at relevant times, and all Rule references

are to the Tax Court Rules of Practice and Procedure.
                                   - 2 -

       Respondent determined a deficiency of $4,230 in petitioners’

Federal income tax for 2002.       The issue is whether petitioners

are entitled to claim dependency exemption deductions under

section 151 for three children of petitioner, Michael T.

Schulteiss (petitioner).       At the time the petition was filed,

petitioners resided in Warwick, Rhode Island.

                               Background

       This case was submitted fully stipulated pursuant to Rule

122.       Petitioner was previously married to Mrs. Lisa Friemark.

During their marriage, petitioner and Mrs. Friemark had three

children:       MAS,1 KES, and SMS (children).   Petitioner and Mrs.

Friemark were divorced on December 29, 1997, pursuant to a Final

Judgment of Divorce (divorce decree) entered by the Family Court

for Washington County, State of Rhode Island.

       In accordance with the divorce decree, petitioner and Mrs.

Friemark were awarded joint legal custody of the minor children.

Mrs. Friemark was given primary physical custody of the children

(custodial parent).       Petitioner and Mrs. Friemark agreed to the

following provision for claiming the children as dependents for

Federal income tax purposes:

       That the parties shall share those tax deductions
       allowable as to the minor children, and Husband shall
       be permitted to claim all three children in the event
       that Wife would not benefit from use of a deduction,
       e.g., if she has not earned sufficient taxable income.


       1
            The Court uses the initials of minor children.
                                 - 3 -

     Petitioners filed a Federal income tax return for tax year

2002, as married filing jointly.    Petitioners claimed dependency

exemption deductions for the children.    Mrs. Friemark also

claimed dependency exemption deductions for the children on a

jointly filed Federal income tax return for tax year 2002.

     Respondent disallowed petitioners’ claimed dependency

exemption deductions and issued a notice of deficiency to

petitioners on March 29, 2004.    Petitioners filed a timely

petition on June 15, 2004.

     Petitioner asserts that he is entitled to claim dependency

exemption deductions for the children in any year in which Mrs.

Friemark would not “benefit” from claiming the deductions.

Respondent disagrees.

                             Discussion

     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, a taxpayer generally must provide

more than half of a claimed dependent’s support for the calendar
                                    - 4 -

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

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

is in the custody of one or both of his parents for more than

one-half of the calendar year and receives more than half his

support during that year from his parents, such child shall be

treated, for purposes of section 152, as receiving over half of

his support during the calendar year from the parent having

custody for a greater portion of the calendar year (the custodial

parent).   Sec. 152(e)(1).       Custody is determined by the terms of

the most recent decree of divorce or subsequent custody decree,

and “will be deemed to be with the parent who, as between both

parents, has the physical custody of the child for the greater

portion of the calendar year.”          Sec. 1.152-4(b), Income Tax Regs.

     A custodial parent may release claim to the exemption

pursuant to the provisions of section 152(e)(2), which provides:

     SEC. 152(e). Support Test in Case of Child of Divorced
     Parents, Etc.--

                 *    *      *      *       *   *    *

               (2) Exception where custodial parent
          releases claim to exemption for the year.--A
          child * * * shall be treated as having
     during
          received
            a calendar
                   overyear
                        halffrom
                             of his
                                 thesupport
                                     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
                              - 5 -

               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

(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, Release of Claim to Exemption for Child of




     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 -

Divorced or Separated Parents, 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.     Id. at

190.

       Although petitioner and Mrs. Friemark have joint legal

custody of the children, Mrs. Friemark has physical custody, and

she is deemed to be the custodial parent for purposes of section

152(e).    Petitioner, as the noncustodial parent, is not entitled

to the claimed dependency exemption deductions unless he complied

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 Mrs. Friemark.    Petitioner did not attach

such a declaration or Form 8332 to his return, and accordingly he

is not entitled to the dependency exemption deductions for the

children for the 2002 taxable year.

       Petitioners further argue that they are entitled to the

dependency exemption deductions because of the terms of the
                               - 7 -

divorce decree which provided that petitioner would be entitled

to claim the children as dependents if Mrs. Freimark did not

“benefit” from the use of the deduction.     We need not and do not

consider the contingency described in the divorce decree.     As

described above, section 152(e) provides that the custodial

parent is entitled to the exemption unless the noncustodial

parent fits within one of the exceptions.     We previously

explained that petitioners do not come within the exception under

section 152(e)(2).   Petitioners do not fit within any of the

other exceptions.3

     For the reasons set forth herein, respondent’s determination

is sustained.

     Reviewed and adopted as the report of the Small Tax Case

Division.



                                       Decision will be entered

                               for respondent.




     3
        While sec. 152(e)(4) permits a noncustodial parent to
claim an exemption under specific circumstances, said section
applies only to qualified pre-1985 instruments. The divorce
decree was entered in 1997.
