                  T.C. Summary Opinion 2005-152



                     UNITED STATES TAX COURT



                 JAMES M. MELTON, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 7880-04S.             Filed October 17, 2005.



     Timothy G. Patterson, for petitioner.

     Bradley C. Plovan, for respondent.



     POWELL, Special Trial Judge:   This case was heard pursuant

to the provisions of section 74631 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.


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

     Respondent determined a deficiency of $2,195 in petitioner’s

2001 Federal income tax.   The issues are whether petitioner is

entitled to a section 151 dependency exemption deduction for two

children and a section 24 child tax credit for one child.    At the

time the petition was filed petitioner resided in Baltimore,

Maryland.

                             Background

     The facts are stipulated.    Petitioner was married to Brenda

Sue Melton, and they are the parents of two children.   In 1990

they were divorced.   The Judgment of Divorce provided that the

parties are granted “the permanent joint care and custody of

* * * [the children] subject to the following arrangements”.

Petitioner would have custody of the children beginning on

Saturday morning through the end of the school day on Monday

except for the second weekend of each month.   Petitioner had “the

right to visit with and have the children with him every

Wednesday morning until the end of the school day”.   The children

would spend approximately one-half of their time with each parent

on major holidays.    Petitioner would have the children the first

2 weeks of July and August of each year.   With respect to taxes,

petitioner would be “entitled to the Federal and State tax

deductions attributed to the children * * * so long as his
                               - 3 -

support payments entitle him to same under IRS guidelines.”    The

judgment was approved by the attorneys for the parties.   Brenda

Sue Melton did not sign the judgment.

     On his 2001 Federal income tax return petitioner claimed

dependency exemption deductions for both children and a child tax

credit for one child.   Respondent disallowed the dependency

exemption deductions and the child tax credit.

                            Discussion2

A.   Dependency Exemption Deduction

     Sections 151 and 152 provide that a taxpayer is entitled to

deduct an exemption for a dependent if the taxpayer provides over

half of the support for the dependent.    Under section 152(e)(1),

in the case of a minor dependent whose parents are divorced,

separated under a written agreement, or who have lived apart at

all times during the last 6 months of the calendar year, and

together provide over half of the support for the minor

dependent, the parent having custody for a greater portion of the

calendar year (custodial parent) generally shall be treated as

providing over half of the support for the minor dependent.

     Petitioner contends that he is the custodial parent.   He

argues that in computing which parent had greater custodial time,

the time set forth in the Judgment of Divorce should be


     2
          We decide the issues in this case without regard to the
burden of proof. See Higbee v. Commissioner, 116 T.C. 438
(2001).
                               - 4 -

considered his time and then one-half of the remaining time is

his custodial time.   We disagree.   We believe that the former

wife had custody during the times not specifically set forth in

the judgment.   Petitioner is not the custodial parent and is not

entitled to the dependency exemption deductions under section

152(e)(1).

     A noncustodial parent may be entitled to the exemption if

one of three exceptions in section 152(e) is satisfied.    The only

exception relevant to this case is contained in section

152(e)(2).   Section 152(e)(2) provides that a child shall be

treated as having received 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.

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

Fed. Reg. 34459 (Aug. 31, 1984),3 further provides:

     The written declaration may be made on a form to be
     provided by the Service for this purpose. * * *




     3
          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).
                                 - 5 -

     Pursuant to the regulations, the Internal Revenue Service

issued Form 8332, Release of Claim to Exemption for Child of

Divorced or Separated Parents, as a way to satisfy the written

declaration requirement of section 152(e)(2).    Form 8332

instructs the taxpayer to provide (1) the names of the children

for whom exemption claims were released, (2) the years the claims

are released, (3) the signature of the custodial parent to

confirm their consent, (4) the Social Security number of the

custodial parent, (5) the date of the custodial parent’s

signature, and (6) the name and Social Security number of the

parent claiming the exemption.    If Form 8332 is not used, a

statement conforming to the substance of Form 8332 must be used.

See Miller v. Commissioner, 114 T.C. 184 (2000); sec. 1.152-

4T(a), Q&A-3, Temporary Income Tax Regs., supra.

     Petitioner did not attach a written declaration, Internal

Revenue Service form, or other statement signed by the custodial

parent to his return.   See sec. 152(e)(2)(A) and (B).

Petitioner, therefore, did not establish entitlement to the

dependency exemption deductions for the year in question.      See

Paulson v. Commissioner, T.C. Memo. 1996-560.

     Although the Judgment of Divorce provides that petitioner

may be entitled to the dependency exemption deduction, it cannot

by its own terms determine issues of Federal tax law.    See

Commissioner v. Tower, 327 U.S. 280 (1946); Kenfield v. United
                              - 6 -

States, 783 F.2d 966 (10th Cir. 1986); Neal v. Commissioner, T.C.

Memo. 1999-97; Nieto v. Commissioner, T.C. Memo. 1992-296.

Petitioner’s remedy is to enforce the former wife’s compliance

with an order from the State court.

B.   Child Tax Credit

     Section 24(a) provides that a taxpayer may claim a child tax

credit for “each qualifying child”.    As relevant here, a

qualifying child is defined as an individual if “the taxpayer is

allowed a deduction under section 151 with respect to such

individual for the taxable year”.   Sec. 24(c)(1)(A).   Petitioner

did not establish entitlement to a dependency exemption deduction

under section 151; therefore, he is not entitled to claim the

child tax credit.

     Reviewed and adopted as the report of the Small Tax Case

Division.

                                           Decision will be entered

                                      for respondent.
