                                               RACHEL GEORGE, PETITIONER v. COMMISSIONER                                  OF
                                                      INTERNAL REVENUE, RESPONDENT
                                               Docket Nos. 15083–10, 6116–11.                   Filed December 19, 2012.

                                                 In January 2007, in compliance with a State court order, P
                                               executed a Form 8332 (‘‘Release of Claim to Exemption for
                                               Child of Divorced or Separated Parents’’), which stated that ‘‘I
                                               agree not to claim an exemption for’’ her daughter S.S. as a
                                               dependent for the years at issue. However, P believed the
                                               State court order to be improper, so on her income tax return
                                               for each of 2007 and 2008, P claimed a dependency exemption
                                               deduction and a child tax credit for S.S. P’s former spouse also
                                               claimed S.S. as a dependent for those years and attached the
                                               executed Form 8332 to his tax returns. Held: The Form 8332
                                               that P executed was not rendered invalid by any error in the
                                               State court order requiring it nor by the fact that P signed the
                                               form under the compulsion of that State court order. Rather,
                                               P’s release of her claim to the exemption was valid. Con-
                                               sequently, under the terms of I.R.C. sec. 152(e), S.S. was not
                                               a qualifying child of P; and, therefore, P was not entitled to
                                               a dependency exemption deduction or a child tax credit for
                                               S.S. for 2007 or 2008.

                                           Rachel George, for herself.
                                           Rebecca J. Sable, for respondent.
                                     508




VerDate Nov 24 2008   10:21 Jun 06, 2014   Jkt 372897   PO 20012   Frm 00001   Fmt 2847   Sfmt 2847   V:\FILES\BOUND VOL. WITHOUT CROP MARKS\B.V.139\GEORGE.DEC   JAMIE
                                     (508)                          GEORGE v. COMMISSIONER                                          509


                                                                                  OPINION

                                       GUSTAFSON, Judge: The Internal Revenue Service (IRS)
                                     determined deficiencies of $1,510 and $2,414 in petitioner
                                     Rachel George’s 2007 and 2008 Federal income tax. Ms.
                                     George petitioned this Court pursuant to section 6213(a) 1 to
                                     redetermine those deficiencies. The cases are now before the
                                     Court on the Commissioner’s motion for partial summary
                                     judgment pursuant to Rule 121; and the motion addresses all
                                     the issues in docket No. 15083–10 and the principal issues
                                     in docket No. 6116–11. The issue now before us is whether
                                     Ms. George is entitled to a dependency exemption deduction
                                     and a child tax credit for her daughter S.S. 2 for each of tax
                                     years 2007 and 2008. We conclude that she is not and will
                                     grant the Commissioner’s motion.

                                                                               Background
                                       Consistent with the principles of Rule 121 (explained
                                     below), we will assume true the allegations favorable to Ms.
                                     George and will make the inferences favorable to her. Those
                                     assumed facts are as follows.
                                     Divorce and child support proceedings
                                       Ms. George and Mr. Johnson John were married in 1988.
                                     They have two daughters, I.E. (born in 1988) and S.S. (born
                                     in 1992). Ms. George and Mr. John separated in July 1992;
                                     and on March 16, 1995, the Circuit Court for Prince George’s
                                     County, Maryland (‘‘Maryland court’’), granted an absolute
                                     divorce to Ms. George and Mr. John, which incorporated the
                                     terms of their previously executed separation agreement. The
                                     divorce judgment awarded custody of I.E. and S.S. to Ms.
                                     George, and ordered Mr. John to pay child support. The
                                     amount of child support Mr. John was required to pay could
                                     be reduced pursuant to a provision in the separation agree-
                                     ment related to health insurance. Under that provision, until
                                     Ms. George was able to obtain employer-provided health care
                                     coverage, Mr. John was required to provide health insurance
                                       1 Unless otherwise indicated, all citations of sections refer to the Internal Revenue Code of

                                     1986 (26 U.S.C.) in effect for the tax year at issue, and all citations of Rules refer to the Tax
                                     Court Rules of Practice and Procedure.
                                       2 In order to protect their privacy, we refer to Ms. George’s children by their initials. See Rule

                                     27(a)(3).




VerDate Nov 24 2008   10:21 Jun 06, 2014   Jkt 372897   PO 20012   Frm 00002   Fmt 2847   Sfmt 2847   V:\FILES\BOUND VOL. WITHOUT CROP MARKS\B.V.139\GEORGE.DEC   JAMIE
                                     510                 139 UNITED STATES TAX COURT REPORTS                                       (508)


                                     for Ms. George, I.E., and S.S. In exchange, Mr. John was
                                     then allowed to offset the cost of obtaining that insurance
                                     against his child support obligations, with a maximum offset
                                     of $200.
                                        During the years at issue S.S. remained in the sole custody
                                     of Ms. George. S.S. did not provide most of her own support,
                                     and Ms. George does not contend that anyone other than her-
                                     self and Mr. John provided S.S.’s support during the years at
                                     issue. 3 The divorce judgment did not expressly provide how
                                     or whether dependent status of the children would be allo-
                                     cated between Mr. John and Ms. George for tax purposes
                                     after the divorce.
                                        In December 1995 Ms. George and her children moved to
                                     northern Virginia. By February 1996 Mr. John had appar-
                                     ently stopped fulfilling his support obligations; and, as a
                                     result, Ms. George initiated a child support action against
                                     him in Virginia.
                                        Notwithstanding Ms. George’s move to Virginia, one of the
                                     couple (we presume Mr. John) moved the Maryland court to
                                     modify the divorce judgment. On October 11, 1996, the Mary-
                                     land court ordered that Mr. John could claim S.S. ‘‘as an
                                     exemption for Federal and State income tax purposes, each
                                     year, commencing with 1996 taxes, provided that all support
                                     payments are current’’. Even though Ms. George had argued
                                     that Mr. John was in arrears on child care payments and
                                     health insurance premiums for 1996, Ms. George complied
                                     with the court order. At the direction of the court, she signed
                                     in the courtroom on February 3, 1997, a Form 8332 (‘‘Release
                                     of Claim to Exemption for Child of Divorced or Separated
                                     Parents’’), thereby releasing her right to claim an exemption
                                     for S.S. for tax year 1996. Ms. George subsequently moved to
                                     dismiss the case from the Maryland court for lack of personal
                                     jurisdiction, since Mr. John had moved to Connecticut and
                                     Ms. George and the children lived in Virginia. On May 13,
                                       3 If a third party (not the child or her parents) provides most of a child’s support, then—not-

                                     withstanding a purported release by the custodial parent under section 152(e)—a noncustodial
                                     parent (such as Mr. John) could not claim her as a dependent (since section 152(e)(1)(A) applies
                                     only if ‘‘a child receives over one-half of the child’s support * * * from the child’s parents’’ (em-
                                     phasis added)), but the child might remain the custodial parent’s ‘‘qualifying child’’ (since that
                                     term is defined by section 152(c)(1)(D) to include ‘‘an individual * * * who has not provided over
                                     one-half of * * * [that] individual’s own support’’, without any requirement as to who, other
                                     than the child, must provide that support). There is no suggestion in the record in these cases
                                     that S.S. was not a ‘‘qualifying child’’ of Mr. John under the support provisions of the statute.




VerDate Nov 24 2008   10:21 Jun 06, 2014   Jkt 372897   PO 20012   Frm 00003   Fmt 2847   Sfmt 2847   V:\FILES\BOUND VOL. WITHOUT CROP MARKS\B.V.139\GEORGE.DEC   JAMIE
                                     (508)                          GEORGE v. COMMISSIONER                                       511


                                     1997, the Maryland court dismissed the case for lack of juris-
                                     diction over the parties.
                                        Ms. George and Mr. John filed subsequent motions in the
                                     Virginia court system to modify Mr. John’s child support
                                     obligations. Generally, petitions to modify support obligations
                                     were initiated in the Juvenile and Domestic Relations Dis-
                                     trict Court (‘‘JDR district court’’), and appeals therefrom were
                                     heard in a Virginia circuit court. However, on December 8,
                                     2006, just before I.E. turned 18 years old, Mr. John filed not
                                     in the JDR district court but in the Circuit Court of Fairfax
                                     County, Virginia (‘‘Fairfax County circuit court’’ or ‘‘circuit
                                     court’’) a motion styled ‘‘Motion to Modify Child Support,
                                     Etc.’’, in which Mr. John asked the Fairfax County circuit
                                     court to modify his child support obligation to require sup-
                                     port only of S.S. The motion also asked the circuit court to
                                     require that Ms. George execute Form 8332 releasing her
                                     claim to exemption for S.S.
                                        By order of January 5, 2007, the Fairfax County circuit
                                     court ordered that Ms. George execute Form 8332 releasing
                                     any tax exemption claim for S.S. for tax years 1996 to 2010
                                     and amended Mr. John’s child support obligation by
                                     releasing his obligation to support I.E. Ms. George alleges,
                                     and we assume, that Mr. John was in arrears on his child
                                     support obligation at the time the January 2007 court order
                                     was entered and that he continued to be in arrears there-
                                     after. Nonetheless, on January 5, 2007, pursuant to the court
                                     order and under threat of contempt, Ms. George executed
                                     another Form 8332 relinquishing her claim to exemption for
                                     S.S.—this time for the tax years 1996 to 2010. The form
                                     stated: ‘‘I agree not to claim an exemption for’’ S.S.
                                        Ms. George contends that the Fairfax County circuit court
                                     erred by failing to consider whether Mr. John was in arrears
                                     when it ordered her to execute the Form 8332; moreover, she
                                     contends that the circuit court did not have jurisdiction to
                                     modify the child support order (and that the JDR district
                                     court was instead the proper venue). Accordingly, Ms. George
                                     moved the Fairfax County circuit court to reconsider its
                                     order, but her motion was denied. On April 10, 2007, Ms.
                                     George appealed the order to the Virginia Court of Appeals.
                                     On January 30, 2008, the Virginia Court of Appeals dis-
                                     missed Ms. George’s case for failure to file an opening brief.
                                     Ms. George’s State court battle against the January 2007




VerDate Nov 24 2008   10:21 Jun 06, 2014   Jkt 372897   PO 20012   Frm 00004   Fmt 2847   Sfmt 2847   V:\FILES\BOUND VOL. WITHOUT CROP MARKS\B.V.139\GEORGE.DEC   JAMIE
                                     512                 139 UNITED STATES TAX COURT REPORTS                                   (508)


                                     order requiring her to sign the Form 8332 has continued in
                                     JDR district courts and is apparently still ongoing.

                                     Tax returns
                                        Ms. George timely filed a Form 1040, U.S. Individual
                                     Income Tax Return, for each of the tax years 2007 and 2008.
                                     On both returns Ms. George claimed dependency exemption
                                     deductions for S.S. and I.E., claimed head of household
                                     status, and claimed child tax credits for S.S. Mr. John also
                                     filed Form 1040 returns for 2007 and 2008 to which he
                                     attached the Form 8332 that Ms. George had signed on
                                     January 5, 2007. On those returns Mr. John claimed depend-
                                     ency exemption deductions for S.S.
                                        The IRS issued to Ms. George notices of deficiency for tax
                                     years 2007 (on April 5, 2010) and 2008 (on December 13,
                                     2010). In those notices the IRS determined that Ms. George
                                     was not entitled to a dependency exemption deduction or a
                                     child tax credit for S.S. for tax year 2007 or 2008. The IRS
                                     also determined that for 2008 Ms. George had not estab-
                                     lished she was entitled to a dependency exemption deduction
                                     for I.E. or to head of household filing status.
                                        Ms. George filed timely petitions with this Court seeking
                                     redetermination of the deficiencies that the IRS had deter-
                                     mined. The Commissioner has moved for partial summary
                                     judgment as to Ms. George’s claim of a dependency exemp-
                                     tion deduction and a child tax credit for S.S.

                                                                                Discussion
                                     I. Summary judgment standards
                                       Under Rule 121 the Court may grant summary judgment
                                     where there is no genuine dispute as to any material fact
                                     and a decision may be rendered as a matter of law. The
                                     party moving for summary judgment (here, the Commis-
                                     sioner) bears the burden of showing that there is no genuine
                                     dispute as to any material fact, and the Court will view any
                                     factual material and inferences therefrom in the light most
                                     favorable to the nonmoving party (here, Ms. George). See
                                     Dahlstrom v. Commissioner, 85 T.C. 812, 821 (1985). In these
                                     cases we assume the facts as shown by Ms. George, the non-
                                     moving party, or as shown by the Commissioner and not dis-
                                     puted by Ms. George.




VerDate Nov 24 2008   10:21 Jun 06, 2014   Jkt 372897   PO 20012   Frm 00005   Fmt 2847   Sfmt 2847   V:\FILES\BOUND VOL. WITHOUT CROP MARKS\B.V.139\GEORGE.DEC   JAMIE
                                     (508)                          GEORGE v. COMMISSIONER                                        513


                                     II. Dependency exemption
                                        An individual is allowed a deduction for an exemption for
                                     ‘‘each individual who is a dependent (as defined in section
                                     152) of the taxpayer for the taxable year.’’ Sec. 151(c). Sec-
                                     tion 152(a) defines the term ‘‘dependent’’ to include ‘‘a quali-
                                     fying child’’. Generally, a ‘‘qualifying child’’ must: (i) bear a
                                     specified relationship to the taxpayer (e.g., be a child of the
                                     taxpayer), (ii) have the same principal place of abode as the
                                     taxpayer for more than one-half of the taxable year, (iii) meet
                                     certain age requirements, and (iv) not have provided over
                                     one-half of such individual’s support for the taxable year at
                                     issue. Sec. 152(c)(1).
                                        However, in the case of divorced parents, special rules
                                     determine which one 4 may claim a dependency exemption
                                     deduction for a child. See sec. 152(e); Espinoza v. Commis-
                                     sioner, T.C. Memo. 2011–108; cf. sec. 152(c)(4). Pursuant to
                                     section 152(e), when certain criteria are met, a child is
                                     treated as a qualifying child of the noncustodial parent (who
                                     generally would not have otherwise been entitled to a
                                     dependency exemption for the child, because of the ‘‘same
                                     principal place of abode’’ requirement of section 152(c)(1)(B))
                                     rather than of the custodial parent (who generally would
                                     have otherwise been entitled to the exemption). Sec.
                                     152(e)(1); 26 C.F.R. sec. 1.152–4T(a), Temporary Income Tax
                                     Regs., 49 Fed. Reg. 34459 (Aug. 31, 1984).
                                        For these purposes Ms. George is S.S.’s custodial parent
                                     and Mr. John is S.S.’s noncustodial parent, because the
                                     absolute divorce judgment gave Ms. George sole custody of
                                     S.S. See sec. 152(e)(4); 26 C.F.R. sec. 1.152–4(b), Income Tax
                                     Regs. Pursuant to section 152(e)(1) and (2), criteria sufficient
                                     for S.S. to be treated as a qualifying child of Mr. John and
                                     not of Ms. George are as follows:
                                       4 Ms. George does not contend that two divorced parents could each be entitled to a depend-

                                     ency exemption deduction for the same child, and it is clear that they could not be. In general,
                                     section 152 is designed to assure that a given dependent can be claimed on only one tax return;
                                     and section 152(c)(4)—the so-called ‘‘tie-breaker’’—assures that, when ‘‘an individual may be
                                     claimed by 2 or more taxpayers’’, the dependent ‘‘shall be treated as the qualifying child of the
                                     taxpayer’’, sec. 152(c)(4)(A) (emphasis added), who meets certain criteria; and if those competing
                                     claimants are two parents, then under section 152(c)(4)(B), ‘‘such child shall be treated as the
                                     qualifying child of * * * the parent’’ who meets certain criteria. Section 152(e) provides an ex-
                                     ception to that tie-breaker regime and creates its own, by stating that, where a custodial parent
                                     releases the exemption and a noncustodial parent otherwise qualifies, ‘‘such child shall be treat-
                                     ed as being the qualifying child * * * of the noncustodial parent’’—language similar to that of
                                     section 152(c)(4)(B).




VerDate Nov 24 2008   10:21 Jun 06, 2014   Jkt 372897   PO 20012   Frm 00006   Fmt 2847   Sfmt 2847   V:\FILES\BOUND VOL. WITHOUT CROP MARKS\B.V.139\GEORGE.DEC   JAMIE
                                     514                 139 UNITED STATES TAX COURT REPORTS                                     (508)


                                        • The ‘‘child receives over one-half of the child’s support
                                     during the calendar year from the child’s parents * * * who
                                     are divorced * * * under a decree of divorce’’, sec.
                                     152(e)(1)(A);
                                        • such child was ‘‘in the custody of 1 or both of the child’s
                                     parents for more than one-half of the calendar year’’, sec.
                                     152(e)(1)(B);
                                        • ‘‘the custodial parent signs a written declaration (in such
                                     manner and form as the Secretary may by regulations pre-
                                     scribe) that such custodial parent will not claim such child
                                     as a dependent for any taxable year beginning in such cal-
                                     endar year’’, sec. 152(e)(2)(A); and
                                        • ‘‘the noncustodial parent attaches such written declara-
                                     tion to the noncustodial parent’s return’’ for the appropriate
                                     taxable year, sec. 152(e)(2)(B).
                                        The written declaration that the Commissioner relies on
                                     here is the Form 8332 that the Fairfax County circuit court
                                     required Ms. George to sign in January 2007. On that Form
                                     8332, Ms. George straightforwardly declared that she would
                                     not claim S.S. as a dependent for years that included 2007
                                     and 2008. The properly executed Form 8332 was attached to
                                     Mr. John’s 2007 and 2008 returns, indicating that he was
                                     entitled to claim S.S. Under the terms of section 152(e), S.S.
                                     was not a qualifying child of Ms. George for 2007 or 2008,
                                     and Ms. George was not entitled to the dependency exemp-
                                     tion deduction. See King v. Commissioner, 121 T.C. 245, 253
                                     (2003). There is no genuine dispute about whether Mr. John
                                     satisfied the other necessary requirements of section 152(e). 5
                                     Nor does Ms. George argue that she has revoked the Form
                                     8332. 6 Rather, she contends that her Form 8332 should not
                                     be given effect for reasons that we now discuss.
                                     III. Petitioner’s contentions
                                       Ms. George appears to contend that her Form 8332 should
                                     be disregarded for three related reasons—i.e., because she
                                     signed it under compulsion, because the order requiring her
                                     to sign it was erroneous, and because her former husband
                                       5 Accordingly, we are not faced with the question of, nor do we decide, the effect of an executed

                                     Form 8332 if one of the other necessary elements for the noncustodial parent’s claim in section
                                     152(e) is not satisfied. See supra note 3.
                                       6 For tax years beginning after July 2, 2008, regulations were promulgated that set forth a

                                     procedure to revoke a prior-executed Form 8332. See 26 C.F.R. sec. 1.152–4(e)(3), Income Tax
                                     Regs. (2008).




VerDate Nov 24 2008   10:21 Jun 06, 2014   Jkt 372897   PO 20012   Frm 00007   Fmt 2847   Sfmt 2847   V:\FILES\BOUND VOL. WITHOUT CROP MARKS\B.V.139\GEORGE.DEC   JAMIE
                                     (508)                          GEORGE v. COMMISSIONER                                           515


                                     did not provide the child support that the court order
                                     required and presumed.
                                           A. Signing Form 8332 under compulsion
                                        Ms. George contends that we should disregard the release
                                     because she signed it under compulsion and not freely. How-
                                     ever, the facts she alleges—i.e., the threat of judicial con-
                                     tempt if she did not comply and sign—cannot be considered
                                     ‘‘duress’’ that might make her signing void. Duress occurs
                                     when ‘‘an unlawful act’’ induces action, see Price v. Commis-
                                     sioner, T.C. Memo. 2003–226; but it was Virginia law that
                                     required Ms. George to comply with the Fairfax County cir-
                                     cuit court’s order, see Parham v. Commonwealth, 729 S.E.2d
                                     734, 736–737 (Va. Ct. App. 2012). Every person is always
                                     legally bound to comply with the law—but is not thereby
                                     under duress. 7 For example, when a divorcing couple files a
                                     joint return in compliance with a State court order, an
                                     unwilling signer of that return is not considered to be under
                                     duress but is bound to that election of joint filing status. See
                                     Bruen v. Commissioner, T.C. Memo. 2009–249; Price v.
                                     Commissioner, T.C. Memo. 2003–226. ‘‘Even if such an order
                                     by * * * [the State court] might have been erroneous, * * *
                                     we cannot say that it rose to the level of being improper or
                                     wrongful’’. Berger v. Commissioner, T.C. Memo. 1996–76.
                                     Thus, Ms. George’s obligation under the law to execute the
                                     Form 8332 is not ‘‘duress’’, and the compulsion she felt pro-
                                     vides no basis for invalidating her release on Form 8332.
                                           B. The alleged error of the Fairfax County circuit court
                                              order
                                       Ms. George contends that the Fairfax County circuit court
                                     order that required her to sign the Form 8332 for tax years
                                        7 ‘‘[I]f an act of one party deprives another of his freedom of will to do or not to do a specific

                                     act the party so coerced becomes subject to the will of the other, there is duress, and in such
                                     a situation no act of the coerced person is voluntary and contracts made in such circumstances
                                     are void because there has been no voluntary meeting of the minds of the parties thereto.’’
                                     Diescher v. Commissioner, 18 B.T.A. 353, 358 (1929). But Ms. George signed the Form 8332 not
                                     because of any coercion by a ‘‘party’’, such as Mr. John. Cf. King v. Commissioner, 121 T.C. 245,
                                     253 (2003) (examining whether there was ‘‘an unlawful threat or pattern of abuse or mental
                                     intimidation [by the noncustodial parent] that caused * * * [the custodial parent] to sign the
                                     form under duress’’). Nor was Ms. George under any coercion of her party-opponent in these
                                     cases, the IRS (which had no involvement in her signing the release). Rather, any coercion she
                                     felt was the result of the law (as enforced by the Virginia courts), which required her to sign
                                     the release.




VerDate Nov 24 2008   10:21 Jun 06, 2014   Jkt 372897   PO 20012   Frm 00008   Fmt 2847   Sfmt 2847   V:\FILES\BOUND VOL. WITHOUT CROP MARKS\B.V.139\GEORGE.DEC   JAMIE
                                     516                 139 UNITED STATES TAX COURT REPORTS                                   (508)


                                     1996 to 2010 was in error, both because that court lacked
                                     jurisdiction to issue such an order and because any such
                                     order should have taken into account her former husband’s
                                     past arrears in child support before enabling him to obtain
                                     the dependency exemption for S.S. She contends that once a
                                     State appellate court corrects this wrong, she will be able to
                                     revoke her signature from the Form 8332. Ms. George did
                                     appeal the order, but her appeal was dismissed for failure to
                                     file an opening brief. In the absence of any correction of the
                                     order by a State appellate court, Ms. George collaterally
                                     attacks the State court order here, in effect asking us to hold
                                     that the order is incorrect and that her release on Form 8332
                                     is therefore invalid.
                                        However, we cannot rely on this uncorrected supposed
                                     error to invalidate Ms. George’s release on Form 8332, for
                                     two reasons: First, we lack the power to grant this remedy.
                                     If the State court did err by ordering Ms. George to do some-
                                     thing that legally she should not have been required to do,
                                     then her remedy is not found in the U.S. Tax Court but
                                     rather in an appeal to the State appellate court. The Tax
                                     Court’s jurisdiction is circumscribed by statute, Breman v.
                                     Commissioner, 66 T.C. 61, 66 (1976), and this Court does not
                                     sit as a court of appeals to correct the errors of State family
                                     courts. Second, this remedy would contradict section 152. If
                                     Ms. George’s position were correct, then a custodial parent
                                     could undo the effect of her release on Form 8332 by her uni-
                                     lateral disclaimer of it on the basis of her criticism of the
                                     State court order requiring her to sign the form. The non-
                                     custodial parent could not rely on the form in reporting his
                                     tax liability, and the IRS could not rely on the form in admin-
                                     istering the tax laws. This uncertainty would frustrate the
                                     purpose of section 152(e):
                                     Congress added this written declaration requirement to section 152(e) in
                                     1984 to provide more certainty to the ‘‘often subjective and * * * difficult
                                     problems of proof and substantiation’’ that accompanied dependency
                                     exemption disputes under the prior statute. H. Rept. 98–432 (Part 2), at
                                     1498 (1984). Congress sought clarity as to which of two divorced parents
                                     would receive the dependency exemption for a taxable year and accom-
                                     plished it by conditioning the noncustodial parent’s claim upon the written
                                     verification of the custodial parent’s release of his or her claim. To pre-
                                     serve Congress’s goal we must insist on strict adherence to the require-
                                     ments of section 152. * * * [Chamberlain v. Commissioner, T.C. Memo.
                                     2007–178.]




VerDate Nov 24 2008   10:21 Jun 06, 2014   Jkt 372897   PO 20012   Frm 00009   Fmt 2847   Sfmt 2847   V:\FILES\BOUND VOL. WITHOUT CROP MARKS\B.V.139\GEORGE.DEC   JAMIE
                                     (508)                          GEORGE v. COMMISSIONER                                       517


                                     Ms. George’s position would undermine the intended ‘‘cer-
                                     tainty’’ and ‘‘clarity’’ of section 152(e) and would add great
                                     difficulty to the administration of the dependency exemption.
                                     The statute does not permit the exception for which Ms.
                                     George argues. It is not our prerogative to depart from the
                                     bright-line rule that Congress created. We therefore decline
                                     to examine the propriety of the State court order that
                                     required Ms. George to execute the Form 8332. Such an
                                     endeavor would undertake the administrative burden that
                                     the rule in section 152(e) was designed to alleviate.
                                           C. The noncustodial parent’s noncompliance
                                        Ms. George asserts that, in the years after she executed
                                     the release, Mr. John has continued to fail in his obligations
                                     of financial support by offsetting more than his actual cost of
                                     providing health insurance for S.S. and I.E. (which Ms.
                                     George contends was nothing because Mr. John had
                                     remarried, and, as a result, already had family health insur-
                                     ance coverage). We infer that she thereby contends that,
                                     since she has not benefited from the support provisions of the
                                     court order, she ought not to suffer the detriment of the
                                     release it required. Or, to look at it from Mr. John’s perspec-
                                     tive, since he has allegedly failed to maintain his obligations
                                     under the court order, he ought not to be allowed to benefit
                                     from the court order insofar as it grants him the dependency
                                     exemption. We acknowledge that Ms. George’s argument (if
                                     this is indeed her argument) both is rational and has some
                                     visceral appeal. However, this argument could not change
                                     the outcome of these cases. Her contention that Mr. John is
                                     in arrears on his child support obligations, even if factually
                                     supported, does not affect the validity of her Form 8332
                                     under section 152(e) once the form was executed. 8 The only
                                     ‘‘support’’ requirement applicable to Mr. John’s claim of the
                                     dependency exemption is one not disputed here (see supra
                                     note 3)—i.e., that ‘‘a child receives over one-half of the child’s
                                     support during the calendar year from the child’s parents’’.
                                     Sec. 152(e)(1)(A) (emphasis added).
                                       8 Ms. George’s release on Form 8332 was unconditional, and these cases do not involve a con-

                                     ditional release on a substitute for Form 8332. Cf. Armstrong v. Commissioner, 139 T.C. 468
                                     (2012); Gessic v. Commissioner, T.C. Memo. 2010–88; Brissett v. Commissioner, T.C. Memo.
                                     2003–310.




VerDate Nov 24 2008   10:21 Jun 06, 2014   Jkt 372897   PO 20012   Frm 00010   Fmt 2847   Sfmt 2847   V:\FILES\BOUND VOL. WITHOUT CROP MARKS\B.V.139\GEORGE.DEC   JAMIE
                                     518                 139 UNITED STATES TAX COURT REPORTS                                   (508)


                                       Section 152(e)(1)(A) does not specify which of the child’s
                                     parents must have provided that support. The statute thus
                                     does not require that a noncustodial parent who has the
                                     custodial parent’s release on Form 8332 must also prove that
                                     he, and not the custodial parent, supported the child. Rather,
                                     an obvious purpose of section 152(e) is, where a release is
                                     executed, to eliminate any contest as to which parent pro-
                                     vided how much support. In Miller v. Commissioner, 114 T.C.
                                     184 (2000), aff ’d on other grounds sub nom. Lovejoy v.
                                     Commissioner, 293 F.3d 1208 (10th Cir. 2002), a custodial
                                     parent argued (as Ms. George seems to argue) that the non-
                                     custodial parent ‘‘did not comply with his child support
                                     obligations, and, therefore, * * * he forfeited his right to the
                                     dependency exemptions arguably awarded to him by the
                                     Permanent Orders.’’ Id. at 196. In rejecting this contention,
                                     we stated:
                                     If we accepted * * * [the custodial parent’s] statement of the issue, we
                                     would find ourselves in the middle of a child support fight similar to that
                                     which Congress intended to remove from the Federal courts when it
                                     amended section 152(e) in 1984. Instead, we have framed the issue as it
                                     should be framed: Did the noncustodial parent do what was necessary to
                                     satisfy section 152(e)(2)? Because we conclude that he has not done so in
                                     this case, we need not decide the child support dispute presented to us by
                                     * * * [the custodial parent]. [Id.]

                                     Likewise, since we determine here that Mr. John did what
                                     was necessary to satisfy section 152(e), we need not decide
                                     the child support issue that Ms. George presents. See id.
                                     n.11.
                                       As we recently observed in Walters v. Commissioner, T.C.
                                     Memo. 2012–230, at *5:
                                        Congress created several objective tests in section 152. These tests draw
                                     bright lines, and without these tests there would need to be rules that are
                                     sensitive to a wide variety of family circumstances. Such rules would be
                                     difficult to craft and hard for the Commissioner and the Courts to admin-
                                     ister and would likely require Government intrusion into delicate family
                                     issues.

                                     The Court is required to apply the law as passed by Con-
                                     gress, and the rules of section 152(c), (d), and (e) are explicit.
                                     Our obligation to follow the statute as written applies
                                     whether the resulting disadvantage is suffered by a custodial
                                     parent who executed a Form 8332 but bore an undue and




VerDate Nov 24 2008   10:21 Jun 06, 2014   Jkt 372897   PO 20012   Frm 00011   Fmt 2847   Sfmt 2847   V:\FILES\BOUND VOL. WITHOUT CROP MARKS\B.V.139\GEORGE.DEC   JAMIE
                                     (508)                          GEORGE v. COMMISSIONER                                       519


                                     unintended burden of child support, or is instead suffered by
                                     a noncustodial parent who bore the burden of child support
                                     but did not receive an executed Form 8332. See Armstrong v.
                                     Commissioner, 139 T.C. 468 (2012).
                                     IV. Child tax credit
                                       A taxpayer is entitled to a child tax credit for ‘‘each quali-
                                     fying child’’, as defined in section 152, that has not reached
                                     the age of 17. Sec. 24(a), (c)(1). Given our determination that,
                                     under section 152, S.S. is not a ‘‘qualifying child’’ of Ms.
                                     George for the years at issue, it follows that Ms. George is
                                     not entitled to a child tax credit for S.S. for either of those
                                     years.

                                                                                Conclusion
                                       Since there is no genuine dispute as to any material fact,
                                     and under section 152(e) S.S. is not a qualifying child of Ms.
                                     George for her 2007 or 2008 taxable year, the Commis-
                                     sioner’s motion for partial summary judgment will be
                                     granted. To that end,
                                                                     Decision will be entered for respondent in
                                                                   docket No. 15083–10, and an appropriate
                                                                   order will be entered in docket No. 6116–11.

                                                                               f




VerDate Nov 24 2008   10:21 Jun 06, 2014   Jkt 372897   PO 20012   Frm 00012   Fmt 2847   Sfmt 2847   V:\FILES\BOUND VOL. WITHOUT CROP MARKS\B.V.139\GEORGE.DEC   JAMIE
