                          T.C. Memo. 2010-11



                       UNITED STATES TAX COURT



               JOHN DOUGLAS THOMAS, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 17922-08.              Filed January 19, 2010.



     John Douglas Thomas, pro se.

     Heather D. Horton, for respondent.



             MEMORANDUM FINDINGS OF FACT AND OPINION


     VASQUEZ, Judge:    Respondent determined a $1,593 deficiency

in petitioner’s Federal income tax for 2006.     The issues for

decision are whether petitioner is entitled to a dependency

exemption deduction and a child tax credit for his daughter,
                                - 2 -

S.R.T.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.

                         FINDINGS OF FACT

     Some of the facts have been stipulated and are so found.

The stipulation of facts and the attached exhibits are

incorporated herein by this reference.   Petitioner resided in

Arizona when the petition was filed.

     Petitioner married Karen J. Thomas (Ms. Thomas).    In 1991

they had a daughter, S.R.T.

     On June 6, 1994, the Arizona Superior Court, Maricopa

County, entered a decree of dissolution of marriage (decree)

dissolving petitioner and Ms. Thomas’ marriage.   Petitioner and

Ms. Thomas signed the decree.   The decree does not contain

petitioner’s or Ms. Thomas’ Social Security number or the date

that she signed it.

     The decree awarded Ms. Thomas custody of S.R.T.    It awarded

petitioner up to 30 days summer visitation and reasonable

visitation during his visits to S.R.T.’s State of residence.

     The decree required petitioner to pay child support of $400

per month through the Arizona Superior Court, Maricopa County.



     1
        It is the policy of the Court to refer to a minor by her
initials. See Rule 27(a)(3).
                                 - 3 -

Further, it required petitioner and Ms. Thomas to alternate

claiming the dependency exemption deduction and the child tax

credit.   Ms. Thomas was entitled to claim the dependency

exemption deduction and the child tax credit for 1995 and every

odd year thereafter.   Petitioner was entitled to claim the

dependency exemption deduction and the child tax credit in even

years, provided he was current in his payment of total child

support for the current calendar year by December 31.    Under the

decree, if petitioner was current on his child support

obligations, then Ms. Thomas was required to execute all

necessary forms to allow petitioner to claim the dependency

exemption deduction and the child tax credit.

     During 2006 petitioner lived in Arizona and was current in

his child support obligations.    S.R.T. was 15 years old and lived

with Ms. Thomas in Ohio.

     A certified public accountant (C.P.A.) prepared petitioner’s

Form 1040, U.S. Individual Income Tax Return, for 2006.     The

C.P.A. advised petitioner that respondent rejected his

electronically filed Form 1040 because someone else had already

claimed S.R.T. as a dependent.    After inquiry petitioner learned

that Ms. Thomas had claimed S.R.T. as a dependent.   Thereafter,

the C.P.A. filed a paper Form 1040 for petitioner claiming the

dependency exemption deduction and the child tax credit for

S.R.T.    Petitioner did not attach Form 8332, Release of Claim to
                                 - 4 -

Exemption for Child of Divorced or Separated Parents.     Instead,

he attached a copy of the decree.

                                OPINION

      Petitioner has neither claimed nor shown that he satisfied

the requirements of section 7491(a) to shift the burden of proof

to respondent with regard to any factual issue.

I.   Dependency Exemption Deduction

     Section 151(a) and (c) allows taxpayers an annual exemption

deduction for each “dependent” as defined in section 152.      A

dependent is either a qualifying child or a qualifying relative.

Sec. 152(a).   The requirement is disjunctive, and, accordingly,

satisfaction of either the qualifying child requirement or the

qualifying relative requirement allows the individual to be

claimed as a dependent.     A qualifying child must meet the

following four requirements:

     • Relationship.--The individual (dependent) is a child

     of the taxpayer, descendant of a child of the taxpayer,

     a brother, sister, stepbrother, or stepsister of the

     taxpayer, or a descendant of any such relative.    Sec.

     152(c)(1)(A), (2).

     • Residence.--The individual has the same principal

     place of abode as the taxpayer for more than one-half

     of the taxable year.    Sec. 152(c)(1)(B).
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     • Age.--The individual must not yet have attained the

     age of 19, or the individual is a student who has not

     yet attained the age of 24.   Sec. 152(c)(1)(C), (3)(A).

     • Support.--The individual has not provided over

     one-half of such individual’s own support.   Sec.

     152(c)(1)(D).

     During 2006 S.R.T. resided with Ms. Thomas in Ohio.2    Thus,

S.R.T. did not have the same principal place of abode as

petitioner for more than one-half of the taxable year, and she is

not petitioner’s qualifying child under section 152(c).     See sec.

152(c)(1)(B).

     A qualifying relative must meet the following four

requirements:

     • Relationship.--The individual (dependent) is the

     taxpayer’s child, a descendant of the taxpayer’s child,

     the taxpayer’s brother, sister, stepbrother, or

     stepsister; the taxpayer’s father or mother or an

     ancestor of either, the taxpayer’s stepfather or

     stepmother, a son or daughter of the taxpayer’s brother

     or sister, a brother or sister of the taxpayer’s father

     or mother, a son-in-law, daughter-in-law,

     father-in-law, mother-in-law, brother-in-law, or



     2
        The parties have also stipulated that petitioner was the
noncustodial parent.
                                 - 6 -

     sister-in-law; or an individual (other than an

     individual who at any time during the taxable year was

     the taxpayer’s spouse determined without regard to

     section 7703) who has the same principal place of abode

     as the taxpayer and is a member of the taxpayer’s

     household during the taxable year.      Sec. 152(d)(1)(A),

     (2).

     • Gross Income.--The individual’s gross income for the

     taxable year is less than the exemption amount ($3,300

     for 2006).   Sec. 152(d)(1)(B).

     • Support.--The taxpayer provides over one-half of the

     individual’s support for the taxable year.      Sec.

     152(d)(1)(C).

     • Not a Qualifying Child.--The individual is not a

     qualifying child of the taxpayer or of any other

     taxpayer for the taxable year.      Sec. 152(d)(1)(D).

     Petitioner did not substantiate the amount of S.R.T.’s

support from all sources in 2006.    In addition, petitioner has

not established that S.R.T. was not a qualifying child of any

other taxpayer for 2006 (e.g., Ms. Thomas).      See sec.

152(d)(1)(D).   S.R.T., therefore, is not petitioner’s qualifying

relative under section 152(d).

     Section 152(e), however, provides a special rule applicable

to divorced parents where a noncustodial parent may be entitled
                               - 7 -

to claim a dependency exemption deduction for the child

notwithstanding the residency requirement of section

152(c)(1)(B), the support requirement of section 152(d)(1)(C), or

the so called tie-breaking rule of section 152(c)(4).    The

following requirements must be met in order for the child to be

treated as the noncustodial parent’s qualifying child or

qualifying relative.

     • Support.--The child receives over one-half of the

     child’s support during the calendar year from the

     child’s parents.   Sec. 152(e)(1)(A).

     • Parents.--The parents are divorced or legally

     separated under a decree of divorce or separate

     maintenance, are separated under a written separation

     agreement, or live apart at all times during the last 6

     months of the calendar year.   Sec. 152(e)(1)(A).

     • Custody.--The child is in the custody of one or both

     parents for more than one-half of the calendar year.

     Sec. 152(e)(1)(B).

     • Custodial Parent Releases Claim to Exemption.--The

     custodial parent signs a written declaration (in such

     manner and form as the Secretary may prescribe) that

     the custodial parent will not claim the child as a

     dependent for the taxable year.   Sec. 152(e)(2)(A).
                                   - 8 -

        • Noncustodial Parent Attaches Release to Return.--The

        noncustodial parent attaches the written declaration to

        the noncustodial parent’s return for the taxable year.

        Sec. 152(e)(2)(B).

        The written declaration may be made on a Form 8332 or a

document that conforms to its substance.       Miller v. Commissioner,

114 T.C. 184, 190-191 (2000) (citing section 1.152-4T(a), Q&A-3,

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

affd. on other grounds sub nom. Lovejoy v. Commissioner, 293 F.3d

1208 (10th Cir. 2002).       In order for a document to qualify as a

statement conforming to the substance of Form 8332, it must

contain substantially the same information required by Form 8332.

Id. at 191.     Form 8332 requires a taxpayer to furnish:   (1) The

children’s names and the years for which exemption claims are

released; (2) the custodial parent’s signature and the date

thereof; (3) the custodial parent’s Social Security number; and

(4) the noncustodial parent’s name and Social Security number.

Id. at 190.

     Petitioner did not attach Form 8332 to his paper Form 1040;

instead, he attached a copy of the decree.      Under the decree,

petitioner’s entitlement to the dependency exemption deduction

was conditioned on his payment of the total child support for the

year.     The decree, therefore, does not conform to the substance

of Form 8332 or satisfy the requirements of section 152(e)(2).
                                 - 9 -

See Boltinghouse v. Commissioner, T.C. Memo. 2003-134 (only a

release that is unconditional conforms to the substance of Form

8332 and meets the requirements of section 152(e)(2)).     In

addition, the decree does not contain petitioner’s or Ms. Thomas’

Social Security number or the date of her signature.    See Miller

v. Commissioner, supra at 192 (order did not contain custodial

parent’s signature or Social Security number; thus, it did not

substantially conform to Form 8332); White v. Commissioner, T.C.

Memo. 1996-438 (letter failed to state the years released and did

not contain the parents’ Social Security numbers; thus, it did

not substantially conform to Form 8332).     Accordingly, the Court

finds that S.R.T. is not treated as petitioner’s qualifying child

or qualifying relative under section 152(e), and therefore, he is

not entitled to the dependency exemption deduction for her.

II.   Child Tax Credit

      A taxpayer may claim a child tax credit for “each qualifying

child”.   Sec. 24(a).    A qualifying child for purposes of section

24 is a “qualifying child” as defined in section 152(c) who has

not attained the age of 17.     Sec. 24(c)(1).

      Because S.R.T. is not petitioner’s qualifying child under

section 152(c) nor treated as such under section 152(e), he is

not entitled to the child tax credit for her.

      We are not unsympathetic to petitioner’s position.   We also

realize that the statutory requirements may seem to work harsh
                              - 10 -

results to taxpayers, such as petitioner, who are current in

their child support obligations and who are entitled to claim the

dependency exemption deductions or child tax credits under the

terms of a divorce decree.   However, we are bound by the language

of the statute as it is written and the accompanying regulations

when consistent therewith.   Michaels v. Commissioner, 87 T.C.

1412, 1417 (1986); Brissett v. Commissioner, T.C. Memo. 2003-310.

     To reflect the foregoing,


                                         Decision will be entered

                                    for respondent.
