                  T.C. Summary Opinion 2003-80



                     UNITED STATES TAX COURT



               GERARD L. SCHROEDER, Petitioners v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 5473-02S.              Filed June 19, 2003.


     Gerard L. Schroeder, pro se.

     Carroll D. Lansdell, for respondent.


     GOLDBERG, Special Trial Judge:   This case was heard pursuant

to the provisions of section 7463 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.   Unless otherwise indicated,

subsequent section references are to the Internal Revenue Code in

effect for the year at issue.
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     Respondent determined a deficiency of $2,738 in petitioner’s

Federal income tax for the taxable year 1999.   The issues for

decision are: (1) Whether petitioner is entitled to dependency

exemption deductions; and (2) whether petitioner is entitled to

the child tax credit.

     Some of the facts in this case have been stipulated and are

so found.   The stipulation of facts and the attached exhibits are

incorporated herein by this reference.   At the time the petition

was filed, petitioner lived in Short Hills, New Jersey.

     Petitioner was married to Deborah D. Schroeder (Ms.

Schroeder) on December 27, 1980.   The couple had three children

from the marriage:   David Schroeder, born July 14, 1985, Samantha

Schroeder, born July 23, 1988, and Denton Schroeder, born July

16, 1992 (collectively, the children).

     Petitioner and Ms. Schroeder were divorced on April 18,

1994.   The transcript of the divorce proceeding (transcript),

dated April 18, 1994, was incorporated into the Dual Final

Judgment of Divorce, which was dated June 24, 1994.   Petitioner

and Ms. Schroeder both acknowledged at the divorce proceeding

that the agreements made in the transcript were enforceable, even

without the signature of either party.   Ms. Schroeder did not

sign any documents in relation to the transcript.

     The transcript contained the Support and Custody Agreement

(agreement) entered into voluntarily and willingly by petitioner
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and Ms. Schroeder.   The agreement called for petitioner and Ms.

Schroeder to have joint legal custody of the children, with Ms.

Schroeder having primary, physical custody.   Petitioner testified

that the children resided with Ms. Schroeder for more than half

of the 1999 taxable year.   In addition, petitioner testified that

he and Ms. Schroeder collectively provided all the support for

the children during 1999, but he provided the majority of the

that support.

     The agreement also contained a provision that petitioner was

“entitled to receive all exemptions, deductions and the like on

his [Federal] income tax returns with respect to all three

children.”   In preparing his 1999 Federal income tax return,

petitioner claimed three dependency exemption deductions and the

child tax credit with respect to the children.   Petitioner

claimed the deductions relying on the terms of the agreement.

However, petitioner did not attach to his 1999 tax return a

written declaration signed by Ms. Schroeder stating that she

would not claim the children as dependents during the 1999

taxable year.

     In the statutory notice of deficiency, respondent disallowed

the dependency exemption deductions and the child tax credit on

grounds that petitioner had not established entitlement to

either.

     We decide the deficiency issue in this case on the basis of
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the record without regard to the burden of proof.   Accordingly,

we need not decide whether the general rule of section 7491(a)(1)

is applicable in this case.   See Higbee v. Commissioner, 116 T.C.

438 (2001).

Dependency Exemptions

     Section 151(c) allows a taxpayer to deduct an annual

exemption amount for each dependent of the taxpayer.   Section

152(a)(1) defines the term “dependent” to include a taxpayer’s

child, provided that more than half of the child’s support was

received from the taxpayer during the calendar year.   However,

special rules apply in the case of a child of divorced parents.

See sec. 152(e).

     Pursuant to section 152(e)(1), if a child receives over half

of his support during the calendar year from divorced parents,

and such child is in the custody of one or both parents for more

than one-half of the calendar year, then such child is treated

for purposes of section 152(a) as receiving over half his support

from the parent having custody for a greater portion of the

calendar year.   This special rule applies regardless of which

parent actually provided the support.   Sec. 152(e)(1).

     For purposes of section 152(e), the parent having custody

for a greater portion of the calendar year is referred to as the

“custodial parent”, and the term “noncustodial parent” means the

parent who is not the custodial parent.
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     There are three exceptions to the support test determined in

section 152(e)(1).   Under these exceptions, the noncustodial

parent is treated as providing over half of a child’s support if:

(1) Pursuant to section 152(e)(2), the custodial parent signs a

written declaration that such custodial parent will not claim

such child as a dependent, and the noncustodial parent attaches

such written declaration to the noncustodial parent’s return for

the taxable year; (2) pursuant to section 152(e)(3), there is a

multiple support agreement between the parties as provided in

section 152(c); or (3) pursuant to section 152(e)(4), there is a

qualified pre-1985 instrument providing that the noncustodial

parent shall be entitled to any deduction allowable under section

151 for such child, provided that certain other requisites, not

pertinent here, are met.

     Since Ms. Schroeder had physical custody of the children for

a greater portion of 1999 than did petitioner, she is the

custodial parent, and petitioner is the noncustodial parent for

purposes of section 152(e).   Accordingly, petitioner is allowed

the dependency exemption deductions only if one of the three

exceptions in section 152(e) is met.    However, none of the

exceptions apply.    Petitioner failed to attach a signed written

declaration to his tax return, no evidence was presented with

respect to a multiple support agreement, and no qualified pre-

1985 instrument exists.
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     Petitioner argues that since the agreement explicitly grants

the dependency exemption deductions to him and states that the

agreement is enforceable even if not signed, he is entitled to

the deductions.   However, language in a divorce decree

purportedly giving a taxpayer the right to an exemption deduction

does not entitle the taxpayer to the deduction in the absence of

a signed written declaration required by section 152(e)(2).

Miller v. Commissioner, 114 T.C. 184 (2000), affd. on another

ground sub nom. Lovejoy v. Commissioner, 293 F.3d 1208 (10th Cir.

2002).   Since petitioner attached no declaration whatsoever to

his 1999 tax return, he is not entitled to the dependency

exemption deductions claimed for the year at issue.

     Petitioner further argues that he should be allowed the

deductions in 1999 because respondent allowed the same deductions

in 1994, 1995, 1996, 1997, and 1998, even though no such written

declaration was attached to his tax return in those years.

Petitioner’s argument must fail because each taxable year stands

on its own and must be separately considered.   See United States

v. Skelly Oil Co., 394 U.S. 678 (1969).   Respondent is not bound

in any given year to allow the same treatment permitted in a

previous year.    See Lerch v. Commissioner, 877 F.2d 624, 627 n.6

(7th Cir. 1989); Knights of Columbus Council No. 3660 v. United

States, 783 F.2d 69 (7th Cir. 1986); Corrigan v. Commissioner,

155 F.2d 164 (6th Cir. 1946).   Taxpayers have no right to
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continue a prior tax treatment that was wrong either on the law

or under the facts.    See Thomas v. Commissioner, 92 T.C. 206,

226-227 (1989).    “The mere fact that petitioner may have obtained

a windfall in prior years does not entitle * * * [him] to like

treatment for the taxable year here in issue.”       Union Equity

Coop. Exch. v. Commissioner, 58 T.C. 397, 408 (1972), affd. 481

F.2d 812 (10th Cir. 1973); see also Schaeffer v. Commissioner,

T.C. Memo. 1994-227.

Child Tax Credit

     A credit generally is allowed to a taxpayer for each

qualifying child of the taxpayer.   Sec. 24(a).     Among other

requirements, a qualifying child is one for whom the taxpayer is

entitled to a dependency exemption deduction under section 151.

Sec. 24(c)(1)(A).

     Because we determined above that petitioner is not entitled

to the dependency exemption deduction for his children for the

1999 taxable year, he also is not entitled to the child tax

credit.   Id.

     Reviewed and adopted as the report of the Small Tax Case

Division.

                                             Decision will be entered

                                        for respondent.
