2004 Tax Ct. Summary LEXIS 74">*74 PURSUANT TO INTERNAL REVENUE CODE SECTION 7463(b), THIS OPINION MAY NOT BE TREATED AS PRECEDENT FOR ANY OTHER CASE.
POWELL, Special Trial Judge: This case was heard pursuant to the provisions of
Respondent determined a deficiency of $ 3,592 in petitioners' 2001 Federal income tax. The issues are (1) whether petitioners are entitled to claim dependency exemption deductions for petitioner Jeffrey Scott Robb's (hereinafter petitioner) children from a former marriage under
Background
The facts are undisputed and may be summarized as follows. Petitioner and Lorreta Delaney (Loretta) were divorced in 1994. Together they had four children. In 2001, three of the four children were minors. Petitioner and Loretta entered into a written separation agreement with addendums. In the final divorce decree it is noted that the Circuit Court of Stafford County "neither affirms, ratifies nor incorporates" the agreement or its addendums into the final divorce decree. The agreement, dated September 29, 1992, stated: "Provided the Husband is current in his obligations to pay child support, he may have the children's tax exemptions for both state and federal tax returns." The parties stipulated that petitioner was current in his obligation to pay child support during 2001. Loretta was the custodial parent of the children within the meaning of
On their 2001 Federal income tax return, petitioners claimed dependency exemption deductions, inter alia, for three of petitioner's children2004 Tax Ct. Summary LEXIS 74">*76 from his marriage to Loretta and child tax credits for two of those children. Loretta also claimed dependency exemption deductions for the three children. Respondent disallowed the dependency exemption deductions and the child tax credits claimed by petitioners.
Discussion
1. Dependency Exemptions
Under
(2) Exception where custodial parent releases claim to
exemption for the year. -- A child * * * shall be treated as
having received over half of his support during a calendar year
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 during2004 Tax Ct. Summary LEXIS 74">*78 such calendar year.
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 for the taxable
year beginning in such calendar year. The written declaration
may be made on a form2004 Tax Ct. Summary LEXIS 74">*79 to be provided by the Service for this
purpose. * * *
Pursuant to the regulations, the Commissioner promulgated Form 8332, Release of Claim to Exemption for Child of Divorced or Separated Parents. Form 8332 instructs a taxpayer to furnish (1) the names of the children for whom exemption claims were released, (2) the current and future years for which the claims were released, (3) the signature of the custodial parent confirming his or her 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. See
In
While in this case Loretta did sign the separation agreement, that agreement was specifically not incorporated in the final divorce decree. The agreement did not set forth the taxable years for which it applied.
More importantly, the separation agreement2004 Tax Ct. Summary LEXIS 74">*81 did not provide that Loretta would not claim exemptions for the children, and, indeed, she did claim the exemptions for the 2001 taxable year. In
Finally, it seems to us that, if petitioner were to prevail here, respondent would be faced with the same whipsaw problems that Congress sought to prevent by enacting
2. Child Tax Credits
Reviwed and adopted as the report of the Small Tax Case Division.
Decision will be entered for respondent.
1. Unless otherwise indicated, subsequent section references are to the Internal Revenue Code in effect for the year in issue.↩
2. Temporary regulations are entitled to the same weight as final regulations. See