                       T.C. Memo. 2004-283



                     UNITED STATES TAX COURT



              STEPHEN JAMES CAPUTI, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 18859-03.            Filed December 22, 2004.


     Stephen James Caputi, pro se.

     Carol-Lynn E. Moran, for respondent.


                       MEMORANDUM OPINION


     POWELL, Special Trial Judge:    Respondent determined a

deficiency of $3,112 in petitioner’s 2001 Federal income tax.

The issues are whether petitioner is entitled to (1) a section

151 dependency exemption deduction for his son, Thomas, (2) a

child tax credit under section 24 for Thomas, and (3) head of
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household filing status.1   Underlying these issues is whether

section 152(e) is constitutionally permissible.    At the time the

petition was filed petitioner resided in Washington Crossing,

Pennsylvania.

                             Background

     Petitioner and Jocelyn Sirkis were divorced on October 20,

2000.    They have two children, Theodore and Thomas Caputi.   After

he moved out of the marital residence in mid-November 2000,

petitioner had partial custody of both children on alternating

weekends and for one midweek dinner visit.    During this time,

both petitioner and Ms. Sirkis were seeking primary physical

custody of their sons.

     On September 28, 2001, an agreed custody order of the Court

of Common Pleas of Bucks County, Pennsylvania, provided that both

parents will share legal custody and named Ms. Sirkis the

“primary custodial parent subject to partial physical custody

rights” of petitioner.    Petitioner’s partial physical custody

schedule centers on an alternating weekly basis.    Petitioner has

his sons from Wednesday after school through Thursday morning and

from Friday after school through Monday morning one week, and

then from Tuesday after school through Thursday morning the




     1
          Unless otherwise indicated, section references are to
the Internal Revenue Code in effect for the year in issue.
                                  - 3 -

next.2     Petitioner did not maintain a log or any other record

pertaining to the time that the children were with him during the

year in issue.

      On his Federal income tax return for 2001, petitioner

claimed a dependency exemption deduction for Thomas.      He also

claimed the child tax credit for Thomas and head of household

filing status.     Respondent disallowed the dependency exemption

deduction, the child tax credit, and determined that petitioner’s

correct filing status was single.

                               Discussion

A.   Relevant Statutes

      1.    Dependency Exemption Deduction

      Section 151 provides that an individual taxpayer is allowed

to deduct an exemption for personal dependents.      The definition

of “dependent” includes a son or daughter of the taxpayer “over

half of whose support, for the calendar year * * * was received

from the taxpayer”.      Sec. 152(a).   Special rules, however, apply

in the case of children of divorced or separated parents.      Sec.

152(e).

      Prior to 1985, the custodial parent generally was treated as

having provided more than half of the support for each minor


      2
          The custody order also     provides for the parties to
alternate holidays, to each have     one week of uninterrupted
vacation time with the children,     and for custody when one of the
parties is traveling out of town     on business.
                                  - 4 -

child and was entitled to the dependency exemption deduction.

The noncustodial parent, however, was entitled to the exemption

if he or she provided $1,200 or more for the support of the child

and the custodial parent did not “clearly establish” by a

preponderance of the evidence that he or she provided more than

the noncustodial parent.    See sec. 152(e), prior to amendment by

the Deficit Reduction Act of 1984, Pub. L. 98-369, sec. 423(a),

98 Stat. 799, 848.    This put the Internal Revenue Service (IRS)

in the middle of conflicts between parents that were “often

subjective and [presented] difficult problems of proof and

substantiation.”    H. Rept. 98-432 (Part II), at 1498 (1984).

     Congress amended section 152(e) and gave the exemption to

the custodial parent unless that parent waives the right to claim

the exemption.     Id. at 1499.   Absent such a waiver, under section

152(e)(1), in the case of a minor dependent whose parents are

divorced or separated 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) will

generally be treated as providing over half of the support for

the minor dependent, and that parent will be entitled to the

deduction.

     At trial, petitioner claimed that he had custody of Thomas

for a greater portion of 2001.     Petitioner did not, however,

present any evidence, other than his own rather vague testimony,
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that he had custody of Thomas for a greater portion of the

calendar year.   Prior to the custody order of September 28, 2001,

petitioner had custody of Thomas every other weekend and one

midweek dinner visit.   Furthermore, petitioner admitted that his

time with Thomas for the year 2001 did not increase until after

the custody order of September 28, 2001.   While the new agreement

did increase his time with Thomas, it is by no means clear that

his custody for the remainder of the year exceeded that of his

former wife.   In sum, we find that petitioner was not the

custodial parent for 2001 and, therefore, is not entitled to the

dependency exemption deduction.

     A noncustodial parent may be treated as providing over half

of the support for the minor dependent if the requirements of

section 152(e)(2) are satisfied.   Section 152(e)(2) provides that

the noncustodial parent may be treated as having provided over

half of the support 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.

Petitioner does not contend that section 152(e)(2) applies here.

Therefore, petitioner is not entitled to claim any child as a

dependent under section 151.
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      2.   Child Tax Credit

      Section 24(a) provides that a taxpayer may claim a 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 is not entitled

to claim a dependency exemption deduction under section 151;

therefore, he is not entitled to claim the child tax credit.

      3.   Head of Household Filing Status

       A taxpayer shall be considered a head of a household if

that taxpayer is not married, is not a surviving spouse as

defined in section 2(a), and maintains a household which

constitutes for more than one-half of the taxable year the

principal place of abode of a child of the taxpayer.     Sec.

2(b)(1)(A)(i).    The taxpayer must also furnish over half of the

cost of the household during the taxable year.     Sec. 2(b)(1).   As

discussed, supra, petitioner did not maintain a household that

constituted for more than one-half of the taxable year the

principal place of abode for Thomas.      Accordingly, petitioner is

not entitled to head of household filing status.

B.   The Constitutionality of Section 152(e)

      Petitioner argues that by granting the custodial parent the

dependency exemption deduction, section 152(e) creates the

irrebuttable presumption that the custodial parent provides more
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than half of the dependent’s support and is unconstitutional.      An

irrebuttable presumption may be defined as a presumption

“incapable of being overcome by proof of the most positive

character.”    Heiner v. Donnan, 285 U.S. 312, 324 (1932).

Petitioner argues that section 152(e) denies him equal protection

in disallowing the dependency exemption deduction for one of his

children because Ms. Sirkis and he have an even number of

children for whom he pays child support.

     With regard to Federal statutes, the Due Process Clause of

the Fifth Amendment of the Constitution of the United States

embraces the principles of the Equal Protection Clause of the

Fourteenth Amendment of the Constitution of the United States.

Johnson v. Robison, 415 U.S. 361, 364-365 n.4 (1974); Shapiro v.

Thompson, 394 U.S. 618, 641-642 (1969).    In Regan v. Taxation

with Representation, 461 U.S. 540, 547 (1983), the Supreme Court

noted:

     Generally, statutory classifications are valid if they bear
     a rational relation to a legitimate governmental purpose.
     Statutes are subjected to a higher level of scrutiny if they
     interfere with the exercise of a fundamental right, such as
     freedom of speech, or employ a suspect classification, such
     as race. Legislatures have especially broad latitude in
     creating classifications and distinctions in tax statutes.
     * * * [Citation omitted.]

     No fundamental right or suspect classification is involved

here.    Under the rational basis standard, a provision does not

violate equal protection “if any state of facts rationally

justifying it is demonstrated to or perceived by the courts.”
                               - 8 -

United States v. Md. Savings-Share Ins. Corp., 400 U.S. 4, 6

(1970).   Moreover, “congressional judgments in the form of

‘irrebuttable presumptions’ in the economic area will be upheld

where there is a rational relationship between the criteria set

forth in the statutory mandate and a legitimate congressional

purpose.”   Sakol v. Commissioner, 574 F.2d 694, 698 (2d Cir.

1978), affg. 67 T.C. 986 (1977).   Generally, the alleviation of

“administrative burdens and practical problems of enforcement”

constitutes a legitimate congressional purpose.     Bryant v.

Commissioner, 72 T.C. 757, 766 (1979).

     By enacting the current version of section 152(e), Congress

sought to avoid the very type of factual debates that petitioner

advances regarding the expenses of supporting and raising

children, and to ease the administrative burden that was placed

on the IRS when it became involved in these types of disputes.

Knight v. Commissioner, T.C. Memo. 1992-710.     Section 152(e)

gives the custodial parent the deduction and the ability to waive

it for the benefit of the noncustodial parent.     Id.   This eases

the administrative burden on the IRS and advances enforcement of

the statute in a rational way; therefore, section 152(e) does not

violate the Due Process Clause of the Fifth Amendment of the

Constitution of the United States.     Id.

     To be sure, there are other ways that Congress could have

resolved the problem, and each way would have strengths and
                               - 9 -

weaknesses.   But the fact that another way may seem preferable to

petitioner does not mean that the manner chosen is without a

rational basis.3   Section 152(e) withstands petitioner’s

constitutional challenge.

                                       Decision will be entered

                               for respondent.




     3
          At best petitioner’s argument is somewhat convoluted.
If there were an odd number of children involved, petitioner
acknowledges that equal apportionment of the sec. 151 dependency
exemption deduction would not be possible. Presumably, even
petitioner realizes that the answer could not be derived from
King Solomon’s wisdom.
