                  T.C. Summary Opinion 2002-103



                     UNITED STATES TAX COURT



                 PHIL E. ANDERSON, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 6039-01S.             Filed August 6, 2002.


     Phil E. Anderson, pro se.

     Richard J. Hassebrock, for respondent.


     ARMEN, Special Trial Judge:   This case was heard pursuant to

the provisions of section 7463 of the Internal Revenue Code in

effect at the time that the petition was filed.1   The decision to

be entered in this case is not reviewable by any other court, and

this opinion should not be cited as authority.



     1
       Unless otherwise indicated, all subsequent section
references are to the Internal Revenue Code in effect for 1998,
the taxable year in issue.
                                - 2 -

       Respondent determined a deficiency in petitioner’s Federal

income tax for the taxable year 1998 in the amount of $4,347.

       The issues for decision by the Court are as follows:

       (1) Whether petitioner is entitled to deductions for

dependency exemptions for his five children.     We hold that he is

not.

       (2) Whether petitioner is entitled to a child tax credit and

additional child tax credit.    We hold that he is not.

       (3) Whether petitioner is entitled to head of household

filing status.    We hold that he is not.

       (4) Whether petitioner is entitled to an earned income

credit.    We hold that he is not.

       An adjustment to the amount of petitioner's standard

deduction is a purely mechanical matter, the resolution of which

is dependent on our disposition of the disputed issue regarding

petitioner’s filing status.

Background

       This case was deemed to be submitted fully stipulated, and

the facts stipulated are so found.2     Petitioner resided in


       2
        Petitioner did not appear in court when this case was
called for trial. In contrast, counsel for respondent appeared
and stated that he had been served by petitioner with a Motion to
Withdraw Appeal. Counsel indicated that under these
circumstances, respondent was inclined to move to dismiss the
case for lack of prosecution. However, the Court, after learning
that petitioner had executed a stipulation of facts, intimated
that it would not favorably regard such a motion and proposed
                                                   (continued...)
                                - 3 -

Canton, Ohio, at the time that his petition was filed with the

Court.

     Originally, petitioner and Viola S. Allison (Ms. Allison),

f.k.a. Viola S. Anderson, were married and had five children,

three sons and two daughters.   In or about 1995, petitioner and

Ms. Allison were divorced.

     At all relevant times, Ms. Allison had legal custody of the

five children and was the residential parent pursuant to the

operative divorce instrument.   In contrast, petitioner had

visitation rights and was obliged to pay child support.

     For 1998, petitioner and Ms. Allison provided all (or

virtually all) of the support of their five children.3    Moreover,

throughout that year, the children were continuously in the care

of either petitioner or Ms. Allison.    However, petitioner had

physical custody of the children for less than half of the year,

and his home was not their principal place of abode for more than

half of the year.




     2
      (...continued)
instead that respondent execute the stipulation of facts and
submit the case fully stipulated for decision by the Court on the
merits. Respondent then undertook to do so.
     3
        Like petitioner, both Ms. Allison and her second husband
were employed in 1998. We note that in the case of the
remarriage of a parent, such as Ms. Allison, support of a child
received from the parent’s new spouse is treated as received from
the parent. Sec. 152(e)(5).
                                - 4 -

     Petitioner timely filed a U.S. Individual Income Tax Return,

Form 1040, for 1998, reporting wages of $26,093 and adjusted

gross income of $22,632.   On his return, petitioner designated

his filing status as “head of household”, and he claimed (1)

deductions for dependency exemptions for his five children, (2)

an earned income credit, and (3) a child tax credit (on line 43

of Form 1040) and an additional child tax credit (on line 60 of

Form 1040).    Petitioner did not attach to his return Form 8332,

Release of Claim to Exemption for Child of Divorced or Separated

Parents, or any other declaration or statement from Ms. Allison

agreeing not to claim exemptions for any of their five children

on her return for the year in issue.    In contrast, petitioner did

attach to his return Form 8812, Additional Child Tax Credit.

     In the notice of deficiency, respondent determined that

petitioner’s filing status was “single” rather than “head of

household”.    Respondent also determined that petitioner was not

entitled to:   (1) Deductions for dependency exemptions, (2) an

earned income credit, or (3) a child tax credit and additional

child tax credit.

     In his petition, petitioner admits that he had physical

custody of his children for less than half of the year, but

alleges that he maintained a residence for them and provided over

60 percent of their support.
                                - 5 -

Discussion4

     A.   Deductions for Dependency Exemptions

     Section 151(a) authorizes deductions for the exemptions

provided by that section.   In particular, section 151(c)(1)

provides an exemption for each of a taxpayer’s dependents as

defined in section 152.

     Section 152(a)(1) defines the term “dependent” to include a

taxpayer’s child, provided that more than half of the child’s

support was received from the taxpayer or is treated under

section 152(e) as received from the taxpayer.

     In the case of a child of divorced parents, section

152(e)(1) provides as a general rule that the child shall be

treated as receiving over half of his or her support from the

custodial parent.   In the event of so-called split or joint

custody, “‘custody’ 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.    Thus, in the present case, because Ms. Allison

had legal custody of the five children throughout 1998 (as well

as physical custody for more than half that year) she was the

custodial parent in 1998, and petitioner was the noncustodial



     4
       We decide the issues in this case without regard to the
burden of proof. Accordingly, we need not decide whether the
general rule of sec. 7491(a)(1) is applicable in this case. See
Higbee v. Commissioner, 116 T.C. 438 (2001).
                               - 6 -

parent.

     Section 152(e)(2) provides an exception to the general rule

of section 152(e)(1).   Pursuant to that exception, the child

shall be treated as receiving over half of his or her support

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.[5]

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

Reg. 34459 (Aug. 31, 1984).

     The declaration required by section 152(e)(2)(A) must be

made on either Form 8332 or on a statement conforming to the



     5
        A second exception to the general rule of sec. 152(e)(1)
exists for certain pre-1985 instruments. See sec. 152(e)(4).
Pursuant to that exception, a child of divorced parents shall be
treated as receiving over half of his or her support from the
noncustodial parent if:

          (i) a qualified pre-1985 instrument between the
     parents * * * provides that the noncustodial parent
     shall be entitled to any deduction allowable under
     section 151 for such child, and

           (ii) the noncustodial parent provides at least
     $600 for the support of such child during such calendar
     year.

     In view of the fact that petitioner and Ms. Allison divorced
in or about 1995, this second exception does not apply to the
present case. Sec. 152(e)(4)(B)(i).
                                 - 7 -

substance of that form.    Id.; Miller v. Commissioner, 114 T.C.

184, 189 (2000).   “The exemption may be released for a single

year, for a number of specified years (for example, alternate

years), or for all future years, as specified in the

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

Regs., 49 Fed. Reg. 34459 (Aug. 31, 1984).

     In the present case, Ms. Allison, as the custodial parent,

did not sign Form 8332 or any written declaration or statement

agreeing not to claim exemptions for any of the five children,

and no such form, declaration, or statement was attached to

petitioner’s return for the year in issue.   It follows,

therefore, that the exception set forth in section 152(e)(2) does

not apply and that the general rule of section 152(e)(1) does

apply.    Accordingly, petitioner is not entitled to deductions for

dependency exemptions for any of his five children for 1998.

Sec. 152(e)(1); Miller v. Commissioner, supra.

     In view of the foregoing, we sustain respondent’s

determination on this issue.

     B.   Child Tax Credit and Additional Child Tax Credit

     Section 24(a) authorizes a child tax credit with respect to

each “qualifying child” of the taxpayer.   Section 24(d)

authorizes an additional child tax credit for families with three

or more “qualifying” children.
                                 - 8 -

       The term “qualifying child” is defined in section 24(c).     As

relevant herein, a “qualifying child” means an individual with

respect to whom the taxpayer is allowed a deduction under section

151.    Sec. 24(c)(1)(A).

       We have already held that petitioner is not entitled to a

deduction under section 151 for a dependency exemption for any of

his children.     Accordingly, none of petitioner’s children is a

“qualifying child” within the meaning of section 24(c).     It

follows, therefore, that petitioner is not entitled to a child

tax credit under section 24(a) and an additional child tax credit

under section 24(d) in respect of his children.

       In view of the foregoing, we sustain respondent’s

determination on this issue.

       C.   Filing Status

       As relevant herein, an individual qualifies as a head of

household if the individual is not married at the close of the

taxable year and maintains as his or her home a household that

constitutes for more than one-half of the taxable year, the

principal place of abode of a son or daughter of the taxpayer.

See sec. 2(b)(1)(A)(i).

       Although petitioner may have maintained a residence for his

children, petitioner had physical custody of his children for

less than half of the year, and his residence was not the

principal place of abode of any of his children for more than
                                 - 9 -

half of the year.   It follows, therefore, that petitioner is not

entitled to head of household filing status.

     In view of the foregoing, we sustain respondent’s

determination on this issue.

     D.   Earned Income Credit

     In the case of an eligible individual, section 32(a) allows

an earned income credit against the individual's income tax

liability.   As relevant herein, an "eligible individual" is

defined as an individual who has a "qualifying child" for the

taxable year.6   Sec. 32(c)(1)(A)(i).

     To be a “qualifying child”, an individual must, inter alia,

have the same principal place of abode as the taxpayer for more

than half of the taxable year.    Sec. 32(c)(3)(A)(ii).   Petitioner

had physical custody of his children for less than half of the

year, and his residence was not the principal place of abode of

any of his children for more than half of the year.    It follows,

therefore, that petitioner is not entitled to an earned income

credit.




     6
        An individual may be eligible for an earned income credit
even if the individual does not have a "qualifying child" for the
taxable year. Sec. 32(c)(1)(A)(ii). However, as relevant
herein, such an individual would be eligible only if the
individual’s adjusted gross income were less than $10,030. In
the present case, petitioner’s adjusted gross income was $22,632;
accordingly, petitioner would not be eligible for an earned
income credit without a “qualifying child”.
                               - 10 -

     In view of the foregoing, we sustain respondent’s

determination on this issue.

     E.   Conclusion

     Reviewed and adopted as the report of the Small Tax Case

Division.

     To give effect to our disposition of the disputed issues,



                                         Decision will be entered

                                    for respondent.
