T.C. Summary Opinion 2007-211



                      UNITED STATES TAX COURT



PAUL MARCILLESE SHELTON AND FELICIA LAVERNE GRAHAM, Petitioners
        v. COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 18901-05S.              Filed December 17, 2007.



     Paul Marcillese Shelton and Felicia Laverne Graham, pro se.

     Melinda K. Fisher, for respondent.



     COHEN, Judge:   This case was heard pursuant to the

provisions of section 7463 of the Internal Revenue Code in effect

when the petition was filed.   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.   The trial was conducted by Special Trial Judge Carleton D.

Powell, who died after the case was submitted.     The parties have
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declined the opportunity for a new trial or for supplementation

of the record, and the case has, therefore, been reassigned for

opinion and decision.   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.

     Respondent determined a deficiency of $4,230 in petitioners’

Federal income tax for 2003.   After concessions by respondent,

the issues for decision are whether petitioners are entitled to

claim a dependency exemption deduction for one child of Paul

Marcillese Shelton (petitioner) by a prior marriage to Tanya

Clark (Clark) and whether petitioners are entitled to a child tax

credit with respect to that child.

                             Background

     All of the material facts have been stipulated.   Petitioners

resided in Maryland at the time they filed their petition.

     Petitioner was previously married to Clark, with whom he has

a daughter.   On July 26, 1993, the Circuit Court for Prince

George’s County, Maryland, issued a consent order awarding sole

custody of the child to Clark but permitting petitioner to claim

the child as a dependent for personal Federal income tax purposes

for as long as petitioner complied with timely payments of child

support.   The consent order also requires Clark, if requested, to

execute any waivers necessary to effect the provision for the
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dependency exemption if child support obligations have been met.

The consent order mentions the names of petitioner, Clark, and

their child, but does not contain any Social Security numbers.

It does not mention the years for which any dependency exemption

is purportedly waived.   The consent order is signed by Clark’s

and petitioner’s respective attorneys and by the judge presiding

over their divorce case.   It is not signed by Clark or

petitioner.

     Petitioner was compliant in paying his child support

obligations during the year in issue.    Although petitioner

requested that Clark execute a specific waiver to allow

petitioner to claim the child as his dependent, Clark refused to

sign a waiver as required by the consent order.    Petitioners

claimed a dependency exemption deduction and child tax credit

with respect to petitioner’s child by Clark as well as dependency

exemption deductions and child tax credits with respect to

petitioners’ other three children on their Federal income tax

return for 2003.   Petitioners did not attach a copy of the

consent order to their return.    Respondent disallowed their

claims with regard to petitioner’s child by Clark because

petitioners failed to attach a Form 8332, Release of Claim to

Exemption for Child of Divorced or Separated Parents, to their

return.   Respondent also disallowed in the notice of deficiency

the claimed deductions and credits related to petitioners’ other
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three children due to lack of substantiation, but respondent has

now conceded that petitioners are entitled to a dependency

exemption deduction and child tax credit for each of their other

three children.

                              Discussion

     The Internal Revenue Code allows as a deduction an exemption

for each dependent of a taxpayer in computing taxable income.

Sec. 151(c).   A child of a taxpayer is generally a qualified

dependent only if the taxpayer provides over half of the child’s

support during the taxable year.    Sec. 152(a).   However, section

152(e)(1) limits the dependency exemption where the child’s

parents live apart, as follows:

          SEC. 152(e). Support Test in Case of Child of
     Divorced Parents, Etc.--

               (1) Custodial parent gets exemption.--Except
          as otherwise provided in this subsection, if--

                       (A) a child (as defined in section
                  151(c)(3)) receives over half of his support
                  during the calendar year from his parents--

                            (I) who are divorced or legally
                       separated under a decree of divorce or
                       separate maintenance,

                            (ii) who are separated under a
                       written separation agreement, or

                            (iii) who live apart at all times
                       during the last 6 months of the calendar
                       year, and

                       (B) such child is in the custody of one
                  or both of his parents for more than one-half
                  of the calendar year,
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            such child shall be treated, for purposes of
            subsection (a), as receiving over half of his
            support during the calendar year from the parent
            having custody for a greater portion of the
            calendar year (hereinafter in this subsection
            referred to as the “custodial parent”).

     Petitioner is not the custodial parent of his child by

Clark.   His entitlement to the deduction (and related child tax

credit) depends on the applicability of section 152(e)(2), which

provides:

          SEC. 152(e). Support Test in Case of Child of
     Divorced Parents, Etc.--

                      *   *   *    *      *   *   *

                 (2) Exception where custodial parent releases
            claim to exemption for the year.–-A child of
            parents described in paragraph (1) 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 during such calendar year.

            For purposes of this subsection, the term
            “noncustodial parent” means the parent who is not
            the custodial parent.

The form prescribed for the waiver described in section 152(e)(2)

is Form 8332, which form must be executed by the custodial parent

and attached to the Federal income tax return of the noncustodial
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parent in order for the noncustodial parent to receive the

dependency exemption.     Miller v. Commissioner, 

, 190-

191 (2000), affd. sub nom. Lovejoy v. Commissioner, 

(10th Cir. 2002).

     Petitioners did not attach the required waiver form to their

2003 Federal income tax return, and petitioner was not able to

obtain a form executed by Clark.    Petitioners argue that the

consent order granting the dependency exemption to petitioner is

sufficient to substitute for Form 8332 and to permit them to take

the deduction and the related child tax credit.    Regulations

promulgated with respect to section 152(e) as amended provide

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 for the taxable year beginning

in such calendar year.”    Sec. 1.152-4T(a), Q&A-3, Temporary

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

declaration required under section 152(e)(2) must be made either

on a completed Form 8332 or on a statement conforming to the

substance of Form 8332.     Miller v. 

.

     Form 8332 requires a taxpayer to provide (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
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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 the Social

Security number of the parent claiming the exemption.     Miller v.

.

     Although the consent order does state the names of

petitioner, Clark, and their child, it does not contain any of

the other required elements to conform substantially to a waiver

under Form 8332.   It does not state the years for which the

exemption is purportedly released or that the exemption is

unequivocally released by the terms of the consent order.    It

contains neither Clark’s signature nor the Social Security

numbers of petitioner and Clark.

     The release of the dependency exemption in the consent order

is also subject to a stipulation that petitioner fulfill his

child support obligations before Clark would be obligated to

provide a waiver of her right to claim the dependency exemption

for Federal income tax purposes.   Petitioner complied with his

child support obligations throughout 2003, and it appears that he

was entitled under the consent order to receive a waiver of

Clark’s right to claim a dependency exemption for that year upon

request.   We do not, however, have the jurisdiction to compel

Clark’s compliance with the consent order.   Because the consent

order explicitly references Clark’s completion of a waiver at
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some point in the future, it was not intended by the parties to

function as a substitute for the waiver itself and, regardless of

intent, is not sufficient to serve that purpose.    See Brissett v.

Commissioner, T.C. Memo. 2003-310.

     Because the consent order does not meet the requirements of

section 152(e)(2) and the applicable regulation, it does not

qualify as an effective release of Clark’s entitlement to claim

the dependency exemption for the child.    Because petitioners are

not entitled to claim the child as a dependent for Federal income

tax purposes, they do not satisfy the “qualifying child”

requirements of the child tax credit under section 24 with

respect to the child and are not entitled to the child tax credit

claimed with respect to that child for the year in issue.    See

sec. 24(c)(1); Smith v. Commissioner, T.C. Memo. 2006-163.

     Because of respondent’s concession that petitioners may

claim dependency exemption deductions and associated child tax

credits with respect to petitioners’ other three children,


                                           Decision will be entered

                                      under Rule 155.