                  T.C. Summary Opinion 2004-78



                     UNITED STATES TAX COURT



                 FARAIDOON EMANIE, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 790-02S.               Filed June 3, 2004.


     Faraidoon Emanie, pro se.

     Amy Dyar Seals, 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.
                                  - 2 -

     Respondent determined a deficiency in petitioner’s Federal

income tax of $3,759 for the 1999 taxable year.

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

entitled to dependency exemption deductions for his son and

daughter for the 1999 taxable year, and (2) whether petitioner is

entitled to head-of-household filing status for the 1999 taxable

year.

                                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 the petition

was filed, petitioner resided in Rockford, Illinois.

     Petitioner was previously married to Charlotte Beck (Ms.

Beck).   They have two children:     (1) Jonathan F. Emanie

(Jonathan), born March 17, 1982, and (2) Jennifer S. Emanie

(Jennifer), born in 1987.   In 1997, petitioner and Ms. Beck

entered into a “Marital Settlement Agreement” (Agreement), which

provides in part:

     ARTICLE II. Custody, Visitation, and Support of the
     Minor Children

          1. [Ms. Beck] shall have the sole physical care,
     custody, control, and education of the minor children
     of the parties, subject to [petitioner’s] rights of
     reasonable and seasonable visitation. * * *

               *     *      *       *        *       *     *

          4. [Petitioner] shall have the dependent
     exemptions for tax purposes so long as he fulfills his
                                 - 3 -

     obligations regarding child support, health insurance,
     and payment for uncovered medical expenses.

              *       *      *     *       *     *     *

     ARTICLE VI.     General Provisions

          1. [Petitioner] and [Ms. Beck] shall, upon demand
     of the other party, execute any and all instruments and
     documents that may be reasonably necessary to make
     effective the provisions of this Agreement * * *.

     The Agreement was incorporated into a “Judgment for

Dissolution of Marriage” by the Circuit Court of the 17th

Judicial Circuit, County of Winnebago, State of Illinois.

Petitioner and Ms. Beck were divorced on August 27, 1997.

     During the year in issue, Jonathan resided with petitioner

for about a month in January 1999, and Jennifer resided with

petitioner for about a month and a half during the summer.       For

the remainder of 1999, and indeed the majority of the taxable

year, Jonathan and Jennifer resided with Ms. Beck.

     Petitioner filed a timely Federal income tax return for the

1999 taxable year.    Petitioner filed as “head of household” and

claimed a child tax credit of $350.       Petitioner also claimed

dependency exemption deductions for Jonathan and Jennifer, but

did not attach a written declaration or Form 8332, Release of

Claim to Exemption for Child of Divorced or Separated Parents,

executed by Ms. Beck.     Petitioner asked Ms. Beck to sign a Form

8332 for the taxable year 1999, but she refused to do so.

Respondent, in a notice of deficiency dated October 16, 2001,
                                 - 4 -

disallowed the head-of-household filing status, child tax credit,

and dependency exemption deductions.1

                            Discussion

      As the return for 1999 was filed after July 22, 1998,

section 7491(a) is applicable.    Petitioner did not assert or

present evidence or argument that he satisfied the requirements

of section 7491(a).   We conclude that resolution of the issues in

the present case does not depend upon who has the burden of

proof.

1.   Dependency Exemption Deductions

      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

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



      1
       Respondent determined that petitioner was entitled to a
filing status of single for the 1999 taxable year.
                                 - 5 -

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).   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 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.
                               - 6 -

     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 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



     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).
                                - 7 -

190.

        In the present case, Ms. Beck had custody of Jonathan and

Jennifer for a greater portion of 1999, 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 Ms. Beck.    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 Jonathan and

Jennifer for the 1999 taxable year.

       Petitioner nevertheless argues that he is current in his

obligations regarding child support, health insurance, and

payment for uncovered medical expenses and that, under the terms

of the Agreement, he is entitled to the dependency exemption

deductions.    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
                               - 8 -

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

Respondent is sustained on this issue.3

2.   Filing Status

      To qualify for head of household, a taxpayer must satisfy

the requirements of section 2(b).   Under section 2(b), a taxpayer

shall be considered a head of household if he or she is not

married at the close of the taxable year, is not a surviving

spouse, and, among other choices, maintains as his or her home a

household which constitutes for more than half of such taxable

year the principal place of abode, as a member of such household,

of a son or daughter.   Sec. 2(b)(1)(A).

      In the present case, petitioner’s home was not a household

that constituted the principal place of abode for Jonathan and

Jennifer for more than half of 1999.   Accordingly, petitioner was

not a head of household within the meaning of section 2(b)(1).

We sustain respondent’s determination on this issue.



      3
       Respondent determined that petitioner was not entitled to
a child tax credit of $350 for the 1999 taxable year. We sustain
respondent’s determination on this issue, even though respondent
did not raise this issue at the time of trial or in his pretrial
memorandum. Sec. 24(a) provides for a “credit against the tax *
* * for the taxable year with respect to each qualifying child of
the taxpayer”. The term “qualifying child” means any individual
if three tests are satisfied, one of which is whether the
taxpayer is allowed a deduction under sec. 151 with respect to
such individual for the taxable year. Sec. 24(c)(1). Because we
conclude that petitioner is not entitled to dependency exemption
deductions for 1999, Jonathan and Jennifer are not qualifying
children, and petitioner is not entitled to the child tax credit
of $350 for 1999.
                               - 9 -

    Reviewed and adopted as the report of the Small Tax Case

Division.

    To reflect the foregoing

                                            Decision will be entered

                                       for respondent.
