                     T.C. Summary Opinion 2007-46



                       UNITED STATES TAX COURT



       VITALLY V. AND SVETLANA N. ANDRUKOV, Petitioners v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 5743-06S.                 Filed March 21, 2007.



     Vitally V. and Svetlana N. Andrukov, pro sese.

     Mark D. Eblen, for respondent.



     COHEN, Judge:    This case was heard pursuant to section 7463

of the Internal Revenue Code in effect at the time the petition

was filed.   Unless otherwise indicated, all section references

are to the Internal Revenue Code in effect for the year in issue,

and all Rule references are to the Tax Court Rules of Practice

and Procedure.   The decision to be entered is not reviewable by
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any other court, and this opinion should not be cited as authority.

     Respondent determined a deficiency of $5,090 in petitioners’

Federal income tax for 2004.   After concessions by respondent,

the issues for decision are whether petitioners are entitled to

claim dependency exemption deductions for two children of

Vitally V. Andrukov (petitioner) by a prior marriage to Tanya

Andrukov and whether petitioner is entitled to an earned income

tax credit (EIC) and child tax credits with respect to those

children.

                            Background

     All of the material facts have been stipulated.   Petitioners

resided in Kentucky at the time they filed their petition.

     Petitioner was previously married to Tanya Andrukov, with

whom he has a son and a daughter.   In 2000 and in 2004, the

Superior Court of Washington, County of Whatcom, issued orders in

relation to that marriage and directed that income tax exemptions

for the children of petitioner and Tanya Andrukov be allocated to

petitioner and that the “federal income tax dependency exemption

waiver” form was to be executed by petitioner and Tanya Andrukov.

The two children lived with Tanya Andrukov during the entire 2004

tax year.   Tanya Andrukov failed to execute the waiver and

claimed dependency exemption deductions for the two children, as
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well as the EIC and child tax credits in relation thereto, on her

Federal income tax return for 2004.

     Petitioners also claimed dependency exemption deductions for

petitioner’s two children with Tanya Andrukov, as well as a

dependency exemption deduction for petitioners’ son, and the

related EIC and child tax credits on their Federal income tax

return for 2004.   Because petitioners failed to attach a

Form 8332, Release of Claim to Exemption for Child of Divorced or

Separated Parents, to their return, respondent disallowed their

claims.   Respondent has now conceded that petitioners are

entitled to a dependency exemption deduction for their son,

although that amount was also disallowed in the notice of

deficiency.

                            Discussion

     The Internal Revenue Code allows as a deduction an exemption

for each dependent of a taxpayer in computing taxable income.

Sec. 151(c).   A child of a taxpayer is generally a qualified

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

support during the taxable year.   Sec. 152(a)(1).   However,

section 152(e)(1) limits the dependency exemption where the

child’s parents live apart, as follows:

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

                (1) Custodial parent gets exemption.–-Except
           as otherwise provided in this subsection, if--
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                    (A) a child (as defined in section
               151(c)(3)) receives over half of his support
               during the calendar year from his parents--

                          (i) who are divorced or legally
                     separated under a decree of divorce or
                     separate maintenance,

                          (ii) who are separated under a
                     written separation agreement, or

                          (iii) who live apart at all times
                     during the last 6 months of the calendar
                     year, and

                    (B) such child is in the custody of one
               or both of his parents for more than one-half
               of the calendar year,

          such child shall be treated, for purposes of
          subsection (a), as receiving over half of his
          support during the calendar year from the parent
          having custody for a greater portion of the
          calendar year (hereinafter in this subsection
          referred to as the “custodial parent”).

     Petitioner is not the custodial parent of his two children

with Tanya Andrukov, and they did not live with him during 2004.

His entitlement to the deduction (and related credits) depends on

the applicability 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 described in paragraph (1) 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
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                 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.

The form prescribed for the waiver described in section 152(e)(2)

is Form 8332, Release of Claim to Exemption for Child of Divorced

or Separated Parents, which form must be executed by the

custodial parent and attached to the Federal income tax return of

the noncustodial parent in order for the noncustodial parent to

receive the dependency exemption.       Miller v. Commissioner, 114

T.C. 184, 190-191 (2000), affd. sub nom. Lovejoy v. Commissioner,

293 F.3d 1208 (10th Cir. 2002).

     Petitioners did not attach the required waiver form to their

2004 Federal income tax return and apparently could not obtain a

form executed by Tanya Andrukov despite the orders of the

Superior Court in Washington State.      At the time of trial,

petitioner presented a Form 8332 purportedly executed by Tanya

Andrukov.   When invited to testify under oath that he recognized

his former wife’s signature on the form, however, petitioner

testified that he could not be sure that it was her signature.

Because of the doubts as to authenticity of the Form 8332, the
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form was not admitted, subject to subsequent corroboration by

contact with Tanya Andrukov.   When subsequently contacted by

respondent’s counsel, Tanya Andrukov denied that she had executed

the Form 8332 for 2004.   We conclude that the Form 8332 is not

authentic.   Therefore, we need not decide whether it was so

untimely as to be invalid.

     Because the conditions of section 152(e) have not been met,

petitioners are not entitled to claim petitioner’s two children

with Tanya Andrukov as dependents on their return for 2004.

Because petitioners are not entitled to claim those two children

as dependents, they do not satisfy the “qualifying child”

requirements of the child tax credit under section 24 or the

earned income credit under section 32 with respect to those two

children.    See secs. 24(c)(1), 32(c)(3)(A); Smith v.

Commissioner, T.C. Memo. 2006-163.

     Because of respondent’s concession that petitioners may

claim the dependency exemption deduction and associated credits

with respect to the son of petitioners,


                                             Decision will be entered

                                        under Rule 155.
