                          T.C. Summary Opinion 2016-4



                         UNITED STATES TAX COURT



                     XIONGHUI HE, Petitioner v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent



      Docket No. 18119-14S.                         Filed January 28, 2016.



      Xionghui He, pro se.

      C.D. Bradley and Elizabeth Lamber (specially recognized), for respondent.



                              SUMMARY OPINION


      WELLS, Judge: This case was heard pursuant to the provisions of section

74631 of the Internal Revenue Code in effect when the petition was filed.



      1
      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.
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Pursuant to section 7463(b), the decision to be entered is not reviewable by any

other court, and this opinion shall not be treated as precedent for any other case.

Respondent determined a $3,110 deficiency in petitioner’s Federal income tax for

the taxable year 2011. The issue for decision is whether petitioner is entitled to

dependency exemption deductions and a child tax credit on his 2011 return.

                                      Background

      Some of the facts have been stipulated for trial under Rule 91 and are so

found. The stipulation of facts and the accompanying exhibits are incorporated

herein by this reference. Petitioner resided in Georgia when he filed his petition.

      Petitioner and his ex-wife’s divorce was finalized in 2010. As part of the

divorce process, petitioner and his ex-wife executed in 2009 a Permanent

Parenting Plan (parenting plan) which provided that petitioner’s ex-wife is the

“Primary Residential Parent” of petitioner’s two minor children, A.H. and J.H.2

The parenting plan also contains the following provision:

      The * * * father may claim the exemptions for the child or children so
      long as child support payments are current by the claiming parent on
      January 15 of the year when the return is due. The exemptions may
      be claimed * * * each year. The * * * [mother] will furnish IRS Form
      8332 [Release of Claim to Exemption for Child of Divorced or
      Separated Parents] to the parent entitled to the exemption by February
      15 of the year the tax return is due.

      2
          The Court refers to minor children by their initials. See Rule 27(a)(3).
                                        -3-

      In accordance with the parenting plan, during 2011 A.H. and J.H. lived with

their mother for the greater portion of the calendar year, making her their

“custodial parent” for purposes of section 152(e). See sec. 152(e)(4)(A).

Petitioner was, conversely, the “noncustodial parent”, or the parent without

custody of the children for the greater portion of the calendar year. See id.

subpara. (B).

      As of January 15, 2012, petitioner was current with his child support

payments. However, in contravention of the parenting plan, petitioner’s ex-wife

did not furnish him with a signed Form 8332. Petitioner nevertheless claimed

dependency exemption deductions, as well as a child tax credit, for A.H. and J.H.

on his 2011 return. In lieu of attaching a Form 8332 to his 2011 return, petitioner

attached a letter citing his authority for claiming the children as dependents, with

pages from the relevant divorce documents as proof, and explained that his ex-

wife had refused to obey the divorce decree and intended to claim the children as

dependents.

      On July 15, 2014, respondent mailed to petitioner a notice of deficiency for

taxable year 2011. Petitioner timely petitioned this Court for redetermination.
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                                      Discussion

I.    Dependency Exemption Deductions

      Section 151(c) allows taxpayers to claim exemptions for their dependents

(dependency exemption). Taxpayers may deduct the dependency exemption

amounts in computing their taxable income. Sec. 151(a). Section 152(a) defines

the term “dependent” as either a qualifying child or a qualifying relative.

      Section 152(c) defines a “qualifying child”, in relevant part, as a taxpayer’s

child who (1) has the same principal place of abode as the taxpayer for more than

one-half of the taxable year in issue; (2) is under the age of 19 or, if a student, the

age of 24; and (3) has not provided over one-half of his or her own support for the

calendar year in which the applicable taxable year begins. A.H. and J.H. did not

reside with petitioner for more than one-half of the year in issue, making petitioner

the noncustodial parent, see sec. 152(e)(4)(B), and meaning that A.H. and J.H.

were not his “qualifying children” during 2011,3 see sec. 152(c).




      3
        Additionally, A.H. and J.H. are not petitioner’s “qualifying relatives”. The
definition of “qualifying relative” excludes the “qualifying child” of any other
taxpayer. Sec. 152(d)(1)(D). A.H. and J.H. are “qualifying children” of
petitioner’s ex-wife, see sec. 152(c), and accordingly cannot be the “qualifying
relatives” of petitioner, see sec. 152(d)(1)(D).
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      However, section 152(e) permits a noncustodial parent, under certain

circumstances, to claim a dependency exemption deduction for a child. The

noncustodial parent may claim a dependency exemption deduction for a child 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.

Sec. 152(e)(2). Such a declaration must unconditionally release the custodial

parent’s claim to the child as a dependent and must specify the year or years for

which the declaration is effective. Sec. 1.152-4(e)(1)(i), Income Tax Regs. The

noncustodial parent must attach a copy of the written declaration to the

noncustodial parent’s Federal income tax return for each taxable year for which

the child is claimed as a dependent. Id. subpara. (2).

      The IRS issued Form 8332 to implement the written declaration requirement

of section 152, but other documents may satisfy the requirement. Sec.

1.152-4(e)(1)(ii), Income Tax Regs. To satisfy the requirement, taxpayers who do

not use Form 8332 must attach documents executed for the “sole purpose of

serving as a written declaration” under section 152. Id. Petitioner did not attach a
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Form 8332 to his 2011 return because his ex-wife refused to sign the form.

Instead, petitioner attached pages from his divorce documents, which were

executed in 2009 and 2010. Unfortunately for petitioner, the regulations explicitly

state that court orders, decrees, and separation agreements executed in a tax year

beginning after July 2, 2008, do not satisfy the written declaration requirement.

Sec. 1.152-4(e)(1)(ii)(5), Income Tax Regs. Petitioner’s divorce documents

therefore may not qualify as a written declaration because they were executed after

July 2, 2008, and, consequently, petitioner failed to satisfy the written declaration

requirement of section 152.4

      We sympathize with petitioner’s circumstances: He was up to date on his

child support, and under the divorce documents, his ex-wife was obliged to sign

Form 8332 and release the exemption deductions to him. We are obligated,

however, to follow the statute as written. Accordingly, petitioner is not entitled to

dependency exemption deductions for A.H. and J.H. for tax year 2011.




      4
       In any event, petitioner’s documents would not have qualified as a written
declaration because they made his right to the dependency exemptions conditional
upon staying current with child support payments. See sec. 1.152-4(e)(1)(ii)(5),
Income Tax Regs.; Armstrong v. Commissioner, 139 T.C. 468, 473 (2012), aff’d,
745 F.3d 890 (8th Cir. 2004).
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II.   Child Tax Credit

      Section 24(a) provides a credit against income tax for each qualifying child

of a taxpayer for whom the taxpayer is allowed a deduction under section 151.

Because petitioner is not entitled to dependency exemption deductions for A.H.

and J.H., he also is not entitled to a child tax credit for them for 2011.

      In reaching our holdings herein, we have considered all arguments made

and, to the extent not mentioned above, we conclude they are moot, irrelevant, or

without merit.

      To reflect the foregoing,


                                                      Decision will be entered for

                                                respondent.
