T.C. Summary Opinion 2008-144



                     UNITED STATES TAX COURT



                 LYDIA VELAZQUEZ, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 910-07S.               Filed November 17, 2008.



     Lydia Velazquez, pro se.

     Charles E. Buxbaum, for respondent.



     THORNTON, Judge:   This case was heard pursuant to the

provisions of section 7463 of the Internal Revenue Code in effect

when the petition was filed.1   Pursuant to section 7463(b), the

decision to be entered is not reviewable by any other court, and




     1
       All section references are to the Internal Revenue Code
for the taxable year at issue, and all Rule references are to the
Tax Court Rules of Practice and Procedure.
                                 - 2 -

this opinion shall not be treated as precedent for any other

case.

     Respondent determined a $5,073 deficiency in petitioner’s

2005 Federal income tax.2    The issues for decision are whether

petitioner is entitled to the following:     (1) Dependency

exemption deductions for two of her grandchildren; (2) head of

household filing status; (3) the child care credit; and (4) the

child tax credit.

                              Background

     The parties have stipulated some facts, which are so found.

When she petitioned the Court, petitioner resided in New Jersey.

         Petitioner’s husband is deceased.   She works 10 months each

year as a “seasonal” school clerk for the Newark Board of

Education.     During 2005 she earned wages of $36,605.

     Throughout 2005 petitioner’s daughter, Melissa, and

Melissa’s four children--the oldest an 8-year-old and the

youngest an infant--resided with petitioner in petitioner’s

apartment.     Melissa earned $13,371 in wages that year.

     Two of Melissa’s children, J.Z. and M.Z.,3 were from her

marriage to Handy Z., who divorced her in 2001.     Pursuant to the



     2
       Respondent also determined a deficiency in petitioner’s
2004 tax but has conceded that petitioner has no deficiency for
2004.
     3
       The Court uses initials when referring to a minor child.
See Rule 27(a)(3).
                               - 3 -

divorce decree, during 2005 Melissa received from Handy Z.,

through the county probation office, $4,362 in child support

payments for the benefit of J.Z. and M.Z.    The divorce decree

provided that Handy Z. would be permitted to claim J.Z. and M.Z.

as dependents for Federal income tax purposes.    In fact, Handy Z.

claimed J.Z. and M.Z. as his dependents on his 2005 Federal

income tax return.

     Petitioner, who filed her 2005 Federal income tax return as

a head of household, also claimed J.Z. and M.Z. as her dependents

and claimed the child care credit and the child tax credit.4

     In the notice of deficiency respondent disallowed both of

petitioner’s claimed dependency exemption deductions, the child

care credit, and the child tax credit.   Respondent determined

petitioner’s filing status to be single rather than head of

household.

                            Discussion

     The burden of proof is on petitioner to show that she is

entitled to the claimed dependency exemption deductions and other

tax benefits at issue.5   See Rule 142(a).



     4
       Melissa also filed her 2005 Federal income tax return as a
head of household and claimed her other noninfant child as her
dependent. Apparently, no one claimed as a dependent Melissa’s
infant, who was born in 2005.
     5
       Petitioner has not claimed or shown that she meets the
requirements under sec. 7491(a) to shift the burden of proof to
respondent as to any factual issue relating to her tax liability.
                               - 4 -

1.   Dependency Exemption Deductions

     A taxpayer may claim a dependency exemption deduction for a

“qualifying child”, as defined in section 152(c).     Secs. 151(c),

152(a).   A qualifying child includes a person who:   (1) Is a

child of the taxpayer or the child’s descendant; (2) has the same

principal place of abode as the taxpayer for more than one-half

of the taxable year; (3) has not attained age 19; and (4) has not

provided over one-half of his or her own support for the calendar

year.   Sec. 152(c).

     Respondent does not appear to dispute that J.Z. and M.Z.

meet these four requirements to be claimed as petitioner’s

qualifying children.   Rather, respondent’s primary concern seems

to be that Handy Z. also claimed J.Z. and M.Z. as dependents for

2005.

     Section 152(c)(4)(A) provides a tie-breaking rule for

situations in which two or more taxpayers claim the same

individual as a qualifying child.   As relevant here, this tie-

breaking rule provides that “if (but for this paragraph) an

individual may be and is claimed as a qualifying child by 2 or

more taxpayers for a taxable year beginning in the same calendar

year,” one of whom is the individual’s parent, the individual is

treated as the qualifying child of his or her parent.

Z. had properly claimed J.Z. and M.Z. as his dependents,

the tie-breaking rule would preclude them from qualifying as
                               - 5 -

petitioner’s dependents.   For the reasons discussed below,

however, we conclude that Handy Z. did not properly claim M.Z.

and J.Z. as his dependents.

     For purposes of defining a dependent, section 152(e)

provides a special rule whereby a divorced, noncustodial parent--

such as Handy Z.--may claim a dependency exemption deduction for

a child if certain conditions are met.   One condition is that the

child’s parents must have provided over one-half of the child’s

support during the calendar year.   Sec. 152(e)(1)(A).    Another

condition is that the custodial parent must have executed a

written declaration releasing his or her claim to the dependency

exemption deduction and the noncustodial parent must have

attached the declaration to his or her tax return.   Sec.

152(e)(2).   The custodial parent may make this written

declaration on Form 8332, Release of Claim to Exemption for Child

of Divorced or Separated Parents.   See Miller v. Commissioner,

, 190 (2000), affd. on other grounds sub nom. Lovejoy

v. Commissioner, 

(10th Cir. 2002); sec. 1.152-

4T(a), Q&A-3, Temporary Income Tax Regs., 49 Fed. Reg. 34459

(Aug. 31, 1984).   Form 8332 requires, among other things, that

the custodial parent sign a statement agreeing not to claim the

exemption for the child or children named on the form for the tax

years specified on the form.   A written declaration that is made

other than on a Form 8332 must “conform to the substance of such
                                 - 6 -

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

.

     Because J.Z. and M.Z. were in Melissa’s custody and living

in petitioner’s apartment during 2005, Handy Z. could not claim

them as his dependents unless he met the requirements of section

152(e).    On the basis of the record before us, we conclude that

he did not meet those requirements.      In the first instance, it

does not appear that Handy Z. and Melissa provided over one-half

of J.Z.’s and M.Z.’s support.6    In any event, respondent concedes

that Handy Z. did not attach Form 8332 to his 2005 Federal income

tax return; respondent does not contend that Handy Z. attached to

his 2005 return any other written declaration that conformed to

the substance of Form 8332.    Because Handy Z. was ineligible to

claim J.Z. and M.Z. as his dependents, the tie-breaking rule of

section 152(c)(4)(A) is inapplicable.      We hold that petitioner is

entitled to claim J.Z. and M.Z. as her dependents for 2005.

2.   Head of Household Filing Status

     Section 1(b) grants a special tax rate for any individual

who qualifies as a head of household.      With exceptions not



     6
       Handy Z. contributed $4,362 in child support for J.Z. and
M.Z., or $2,181 apiece. Melissa earned $13,371; dividing this
amount five ways for Melissa and her four children yields $2,674
apiece. Together, then, Handy Z. and Melissa contributed $4,855
toward the support of each of their children J.Z. and M.Z.
Petitioner, on the other hand, earned $36,605. Dividing this
amount six ways for petitioner, Melissa, and the four
grandchildren yields $6,101 apiece.
                                   - 7 -

relevant here, the statute generally defines a head of household

as an unmarried individual who maintains as his or her home a

household which constitutes for more than one-half of the taxable

year the principal place of abode of either a qualifying child

(as defined in section 152(c)) or a dependent of the taxpayer

with respect to whom the taxpayer is allowed a deduction under

section 151.    Sec. 2(b)(1)(A).    For this purpose, an individual

is considered to maintain a household only if he or she furnishes

over one-half of the cost of maintaining the household during the

taxable year.    Sec. 2(b)(1).

      During 2005 petitioner was unmarried.    On the basis of all

the evidence in the record, we conclude that petitioner furnished

over one-half the cost of maintaining her household, which

constituted throughout 2005 the principal place of abode of J.Z.

and M.Z.    Accordingly, petitioner is entitled to head of

household filing status.

3.   Child Care Credit

      Section 21(a) and (b)(2) generally provides for a child care

credit with respect to employment-related expenses that are paid

to enable the taxpayer to be gainfully employed, including

expenses to care for a “qualifying individual”.     A qualifying

individual includes a qualifying child of the taxpayer within the

meaning of section 152(a)(1) who has not turned 13.     Sec.

21(b)(1).
                                 - 8 -

       As previously discussed, J.Z. and M.Z. were qualifying

children of petitioner within the meaning of section 152(a)(1).

During 2005 they had not turned 13.       Petitioner has failed,

however, to substantiate expenses for household services or

expenses for the care of J.Z. or M.Z. in 2005.       Accordingly,

petitioner is not entitled to the child care credit.

4.     Child Tax Credit

       Section 24 generally allows a tax credit for each qualifying

child (as defined under section 152(c)) who is under 17 years of

age.    Sec. 24(a), (c)(1).   As previously indicated, for 2005 J.Z.

and M.Z. were petitioner’s qualifying children and were under age

17.    Respondent has not argued that any limitation in section

24(b) applies.    We conclude that petitioner is entitled to the

child tax credit with respect to J.Z. and M.Z.

       To reflect the foregoing and concessions by respondent,


                                              Decision will be entered

                                         under Rule 155.