                  T.C. Summary Opinion 2007-153



                     UNITED STATES TAX COURT



       SEAN MICHAEL BEARS AND GRETA BEARS, Petitioners v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 11980-06S.            Filed September 5, 2007.



     Sean Michael Bears and Greta Bears, pro sese.

     Micheal J. Proto, for respondent.


     DEAN, Special Trial Judge:   This case was heard pursuant to

the provisions of section 7463 of the Internal Revenue Code in

effect at the time that the petition was filed.   Unless otherwise

indicated, subsequent 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.
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Pursuant to section 7463(b), the decision to be entered is not

reviewable by any other court, and this opinion shall not be

treated as precedent for any other case.

     Respondent determined a $1,465 deficiency in petitioners’

2004 Federal income tax.   The issues for decision are whether

petitioners are entitled to a:    (1) Dependency exemption

deduction; and (2) $1,000 child tax credit.

                            Background

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

The stipulation of facts and the exhibits received into evidence

are incorporated herein by reference.     At the time the petition

was filed, Sean Michael Bears (petitioner) resided in Pawtucket,

Rhode Island, and Greta Bears resided in Methuen, Massachusetts.

     Petitioner fathered a child with Kristen Mutter Rodenbaugh

(child’s mother).   A Judgment of Support was rendered by the

Probate Family Court Department of the Commonwealth of

Massachusetts.   Petitioner was ordered to pay $156 per week as

child support.   He was also required to secure and maintain

health care coverage for his child.      And if he was current on his

obligations, “he may take the child as his dependent for state

and federal income tax purposes.”
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     Petitioners filed a joint Federal income tax return for

2004.   On the return, petitioners claimed a dependency exemption

deduction and a $1,000 child tax credit.   Petitioners did not

attach a Form 8332, Release of Claim to Exemption for Child of

Divorced or Separated Parents, or its equivalent to their return.

At the time they filed their return, petitioners were unaware

that they were required to attach Form 8332 or its equivalent to

the return.

     Respondent issued a notice of deficiency to petitioners.

Respondent denied petitioners’ dependency exemption deduction and

the $1,000 child tax credit since petitioners did not attach a

Form 8332 or its equivalent to the return.   The denials resulted

in a $1,465 deficiency.   Respondent does not dispute that

petitioner has satisfied the conditions of the Judgment of

Support.

                            Discussion

     Respondent urges us to sustain the disallowance of

petitioners’ dependency exemption deduction and the $1,000 child

tax credit because petitioners did not attach Form 8332 or its

equivalent to their 2004 joint Federal income tax return as

required by section 152(e)(2) and section 1.152-4T(a), Q&A-3,

Temporary Income Tax Regs., 49 Fed. Reg. 34459 (Aug. 31, 1984).
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     The Commissioner’s determinations in a notice of deficiency

are presumed correct, and the burden of proof is on the taxpayer

to prove that the determinations are in error.    Rule 142(a);

Welch v. Helvering, 290 U.S. 111, 115 (1933).    Pursuant, however,

to section 7491(a)(1), the burden of proof on factual issues that

affect a taxpayer’s tax liability may be shifted to the

Commissioner where the “taxpayer introduces credible evidence

with respect to * * * such issue”.    In this case, there is no

dispute as to any factual issue.    Accordingly, the case is

decided by the application of law to the undisputed facts, and

section 7491(a) is inapplicable.

1. Dependency Exemption Deduction

     Section 151(c), in pertinent part, allows a taxpayer to

claim as a deduction the exemption amount for each individual who

is a “dependent” of the taxpayer as defined in section 152, and

who is the taxpayer’s child and satisfies certain age

requirements.

     Section 152(a) defines “dependent”, in pertinent part, to

include a “son or daughter of the taxpayer” over half of whose

support is received from the taxpayer for the calendar year in

which the taxable year of the taxpayer begins, or is treated

under section 152(c) or (e) as received from the taxpayer.
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     Section 152(e)(1)1 provides a general rule that limits the

dependency exemption deduction as follows:   If the child received

over half of his support during the calendar year from his

parents who lived apart at all times during the last 6 months of

the calendar year and is in the custody of one or both parents

for more than one-half of the calendar year, then the child is

treated as receiving over half of his support during the calendar

year from the parent having custody for a greater portion of the

calendar year (the custodial parent).2

     But section 152(e)(2) provides an exception to the general

rule of section 152(e)(1):   “If * * * the custodial parent signs

a written declaration (in such manner and form as the Secretary

may by regulations prescribe)” that he will not claim the child

as a dependent and the noncustodial parent attaches the written

declaration to his return for the taxable year, then the

noncustodial parent is entitled to the dependency exemption


     1
      Sec. 152(e)(1) applies to both married parents and parents
who have never been married to each other. King v. Commissioner,
121 T.C. 245, 251 (2003).
     2
      In the present case, the exceptions in sec. 152(e)(3) and
(4) do not apply. There was no multiple support agreement as
defined in sec. 152(c) and, since the Judgment of Support was
entered in 2001, there is no pre-1985 instrument. Thus,
petitioner is entitled to the dependency exemption only if the
requirements of sec. 152(e)(2) are met.
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deduction.   For purposes of section 152(e)(2), the term

“noncustodial parent” means the parent who is not the custodial

parent.   Sec. 152(e)(2).   The temporary regulation states that a

noncustodial parent may claim the exemption for a dependent child

“only if the noncustodial parent attaches to his/her income tax

return for the year of the exemption a written declaration from

the custodial parent stating that he/she will not claim the child

as a dependent”.   Sec. 1.152-4T(a), Q&A-3, Temporary Income Tax

Regs., supra.

     The written declaration may be made on a form provided by

the Service or a document that conforms to its substance.     Miller

v. Commissioner, 114 T.C. 184, 190-191 (2000) (citing sec. 1.152-

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

v. Commissioner, T.C. Memo. 1999-97.    The written declaration is

embodied in Form 8332, and it incorporates the requirements of

section 152(e)(2).   Miller v. Commissioner, supra at 190.3

     In Miller v. Commissioner, supra, the Court stated that in

order for the noncustodial parent to claim the dependency
     3
      Form 8332 requires a taxpayer to furnish: (1) The names of
the children for which exemption claims were released, (2) the
years for which the claims were released, (3) the signature of
the custodial parent, (4) the custodial parent’s Social Security
number, (5) the date of the custodial parent’s signature, and (6)
the noncustodial parent’s name and Social Security number.
Miller v. Commissioner, 114 T.C. 184, 190 (2000).
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exemption, section 152(e)(2) clearly required the custodial

parent’s release of the dependency exemption by signing a written

declaration to that effect.   Id. at 195.   Simply attaching to the

return of the noncustodial parent a State court order that was

not signed by the custodial parent did not satisfy the express

statutory requirements of section 152(e)(2).    Id. at 198.   The

mere fact that the State court granted the taxpayer the right to

claim the dependency exemption was immaterial because a State

court cannot determine issues of Federal tax law.     Id. (citing

Kenfield v. United States, 783 F.2d 966, 969 (10th Cir.1986);

White v. Commissioner, T.C. Memo. 1996-438 (citing with approval

Commissioner v. Tower, 327 U.S. 280, 287-288 (1946)).

     The parties agree that the child’s mother is the “custodial

parent” as defined in section 152(e)(1).    Because petitioners,

the noncustodial parents, did not attach Form 8332 or its

equivalent to their return, they are not entitled to a dependency

exemption deduction.   Accordingly, we sustain respondent’s

disallowance of the dependency exemption deduction.

2. Child Tax Credit

     Section 24(a) provides a credit against income tax for each

“qualified child” of a taxpayer who is under 17 years of age.

The statutory definition of a “qualified child” is one for whom a
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taxpayer may claim a deduction under section 151.   Sec.

24(c)(1)(A).   Thus, a taxpayer is ineligible for the child tax

credit under section 24(a) unless the taxpayer is eligible for

the dependency exemption under section 151.   Having determined

that petitioners are not entitled to the dependency exemption

deduction, it follows that they are not entitled to the child tax

credit.   Accordingly, we sustain respondent’s disallowance of the

child tax credit.

     To reflect the foregoing,



                                               Decision will be

                                         entered for respondent.
