T.C. Summary Opinion 2009-178



                        UNITED STATES TAX COURT



   ROBERT FRANCIS BITZBERGER, JR. AND SAMANTHA J. BITZBERGER,
                         Petitioners v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 6592-08S.               Filed November 30, 2009.



     Robert Francis Bitzberger, Jr., and Samantha J. Bitzberger,

pro sese.

     Carol-Lynn E. Moran, for respondent.



     RUWE, Judge:     This case was heard pursuant to the provisions

of section 74631 of the Internal Revenue Code in effect when the

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


     1
       Unless otherwise indicated, all section references are to
the Internal Revenue Code as amended, and all Rule references are
to the Tax Court Rules of Practice and Procedure.
                                - 2 -

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 $1,495 deficiency in petitioners’ 2006 Federal

income tax.    The issues for decision are:   (1) Whether

petitioners are entitled to a dependency exemption deduction

under section 151(a) and (c), and (2) whether petitioners are

entitled to a child tax credit under section 24(a).

                             Background

     Some of the facts have been stipulated.     The stipulation of

facts and the attached exhibits are incorporated herein by this

reference.    At the time the petition was filed, petitioners

resided in New Jersey.

     Petitioners timely filed their 2006 Federal income tax

return.   On the return petitioners claimed a dependency exemption

deduction and a child tax credit for B.B.2    B.B. is the child of

petitioner Robert Francis Bitzberger (Mr. Bitzberger) and

Catherine Bitzberger (Catherine), Mr. Bitzberger’s ex-wife.

     Mr. Bitzberger and Catherine divorced in 1995.     A final

judgment of dissolution of marriage (final judgment) was rendered

by the Circuit Court of the Fifth Judicial Circuit, in and for

Marion County, Florida, dated March 28, 1995.     In the final

judgment the court ordered and adjudged that “The Wife, Catherine


     2
       The Court refers to minor children by their initials.      See
Rule 27(a)(3).
                                - 3 -

Bitzberger, shall have primary physical residency of the minor

children, E.B. (born: April 4, 1991) and B.B. (born: July 28,

1992).”   Notably, however, the court further ordered and adjudged

that “[Mr. Bitzberger] shall be entitled to claim one of the

minor children as a dependent for the purposes of filing his

state/federal income taxes.    * * * [Catherine] shall execute the

necessary authorization for * * * Mr. Bitzberger to make such

claim.”

     In spite of the court’s order, both Catherine and

petitioners claimed an exemption for B.B. in 2006.   Moreover,

Catherine did not execute a Form 8332, Release of Claim to

Exemption for Child of Divorced or Separated Parents, to allow

petitioners to claim B.B. as a dependent for 2006.   Consequently,

petitioners did not attach a Form 8332 to their 2006 Federal

income tax return.

                              Discussion

     Generally, the Commissioner’s determinations in the notice

of deficiency are presumed correct and the taxpayer bears the

burden of proving error in the determinations.   See Rule 142(a);

Welch v. Helvering, 

(1933).    Pursuant to section

7491(a) the burden of proof may shift to the Commissioner where a

taxpayer has introduced credible evidence regarding factual

issues relevant to ascertaining his tax liability.   Rule
                                 - 4 -

142(a)(2).   Petitioners have neither claimed nor shown

eligibility for a shift in the burden of proof.

Dependency Exemption Deduction

     Section 151(a) and (c) provides that a taxpayer may claim a

deduction for each individual who is a dependent of the taxpayer

as defined in section 152, provided that the dependent’s

identifying number is included on the return.     See secs. 151(e),

7701(a)(41), 6109.   Section 152(a) defines the term “dependent”

in pertinent part to include a “qualifying child”.     The child of

a taxpayer is a qualifying child if that child has the same

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

of the taxable year and meets certain age and self-support

restrictions not at issue here.    Sec. 152(c).   The record,

however, is devoid of any evidence that B.B. and petitioners

shared the same principal place of abode.

     Section 152(e) provides a special rule for divorced parents.

In pertinent part, section 152(e)(1) provides that if a child

receives over one-half of the child’s support during the calendar

year from the child’s parents, who are divorced, and the child is

in the custody of one or both parents for more than one-half of

the calendar year, then the child is treated as being the

qualifying child of the noncustodial parent for the calendar year
                                - 5 -

if certain other requirements are met.3   These other requirements

are met if:   (1) The custodial parent signs a written declaration

(in such manner and form as the Secretary may by regulations

prescribe) that the custodial parent will not claim the child as

a dependent for the taxable year; and (2) the noncustodial parent

attaches the written declaration to the noncustodial parent’s

return for the taxable year.4   Sec. 152(e)(2); sec. 1.152-4T(a),

Q&A-3, Temporary Income Tax Regs., 49 Fed. Reg. 34459 (Aug. 31,

1984).

     The written declaration may be made on a form provided by

the Internal Revenue Service or a document that conforms to the

substance of such form.   Miller v. Commissioner, 

,


     3
       We assume without deciding that Mr. Bitzberger and
Catherine together provided more than half of B.B.’s support
during 2006.
     4
       In 2004 Congress considered, but promptly rejected, a rule
that would have treated a State court order as a sufficient basis
for claiming the dependency exemption. See Working Families Tax
Relief Act of 2004 (WFTRA), Pub. L. 108-311, sec. 201, 118 Stat.
1169 (amending sec. 152(e)(2), effective for taxable years
beginning after Dec. 31, 2004, to provide that a noncustodial
parent is entitled to the dependency exemption deduction for a
child supported by the divorced parents together if “a decree of
divorce or separate maintenance or written separation agreement
* * * provides that * * * the noncustodial parent shall be
entitled to any deduction allowable under section 151 for such
child”). However, Congress promptly reconsidered and
retroactively repealed the 2004 change before the end of 2005, so
that it had no effect. See Gulf Opportunity Zone Act of 2005,
Pub. L. 109-135, sec. 404, 119 Stat. 2632 (retroactively amending
sec. 152(e)(2), effective as if included in the WFTRA, to
eliminate the noncustodial parent’s entitlement to a dependency
exemption deduction pursuant to a State court decree).
                               - 6 -

191 (2000).   The written declaration is embodied in Form 8332,

and it incorporates the requirements of section 152(e).     Miller

v. Commissioner, supra at 190.5

     We infer from petitioners’ assertion that “I sent a copy of

[the final judgment] with my * * * [2006] returns [sic]-as I do

every year” to suggest that the copy of the final judgment of

dissolution of marriage conforms to the substance of Form 8332.

It is beyond debate, however, that neither Catherine nor Mr.

Bitzberger signed the final judgment.

     This Court has held that section 152(e)(2) clearly and

unambiguously requires the custodial parent to sign a written

declaration releasing the dependency exemption for his or her

child to the noncustodial parent.      Miller v. Commissioner, supra

at 193.   In rejecting a noncustodial parent’s claim to the

dependency exemption deduction where the custodial parent failed

to sign a written declaration, this Court stated:

     Even where a State court judge has entered an order
     “granting” the noncustodial parent the right to claim
     the Federal dependency exemption for his child and the
     noncustodial parent attached a copy of the order to his
     tax return, we have rejected the noncustodial parent’s
     claim to the dependency exemption where the custodial

     5
       Form 8332 requires a taxpayer to furnish: (1) The names
of the children for whom the exemption claims are released; (2)
the years for which the claims are 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 the Social
Security number of the parent claiming the exemption. Miller v.
Commissioner, 

, 190 (2000).
                                 - 7 -

     parent failed to sign a written declaration as required
     by section 152(e). * * *

(citing Neal v. Commissioner, T.C. Memo. 1999-97).

     In this case we find that the final judgment does not

conform to the substance of Form 8332, and we further note that a

State court cannot determine issues of Federal tax law.    See

Kenfield v. United States, 

(10th Cir. 1986); Miller

v. Commissioner, supra at 196; White v. Commissioner, T.C. Memo.

1996-438 (citing with approval Commissioner v. Tower, 

(1946)).    Consequently, the final judgment does not vest

petitioners with a right to claim B.B. as a dependent absent

compliance with the requirements of section 152(e).

     In sum, while the parties agree that B.B. is Mr.

Bitzberger’s daughter, the final judgment awards Catherine

custody of B.B.; and there is no evidence in the record nor any

dispute to suggest that Catherine did not have custody during

2006.    Consequently, we find that Catherine was the custodial

parent of B.B. for 2006 as defined in section 152(e)(4)(A).

Moreover, petitioners did not attach to their 2006 return a Form

8332 or a written declaration conforming to the substance of Form

8332.    See sec. 152(e)(2).   Accordingly, we hold that petitioners

are not entitled to a dependency exemption deduction for B.B. for

2006.6

     6
         Petitioners also assert that both before and after 2006
                                                     (continued...)
                               - 8 -

Child Tax Credit

      Subject to income limitations not pertinent here, a child

tax credit is allowed with respect to each qualifying child of

the taxpayer.   Sec. 24(a) and (b).    For this purpose, section

24(c)(1) defines “qualifying child” as a qualifying child of the

taxpayer (as defined in section 152(c)) who has not attained age

17.   Because petitioners failed to establish that B.B. was a

qualifying child under either section 152(c) or the exception of

section 152(e)(2), they have not satisfied the “qualifying child”

requirement of the child tax credit under section 24.     See Walker

v. Commissioner, T.C. Memo. 2008-194.     Accordingly, we sustain

respondent’s determination and hold that petitioners are not

entitled to the child tax credit claimed with respect to B.B. for

2006.




      6
      (...continued)
they claimed the dependency exemption deduction for B.B. and the
IRS allowed those deductions. Petitioners’ position is in the
nature of an argument for equitable estoppel. However, each tax
year stands on its own and must be separately considered. Haeder
v. Commissioner, T.C. Memo. 2001-7 (citing United States v.
Skelly Oil Co., 

, 684 (1969)). Furthermore, it is
well settled that the Commissioner cannot be estopped from
correcting a mistake of law, even where a taxpayer may have
relied to his detriment on that mistake. Dixon v. United States,

, 72-73 (1965); Auto. Club of Mich. v. Commissioner,

, 183-184 (1957); see also Massaglia v. Commissioner,

, 262 (10th Cir. 1961), affg. 

(1959);
Zuanich v. Commissioner, 

, 432-433 (1981).
                                 - 9 -

     In reaching our decision, we have considered all arguments

made, and to the extent not mentioned, we conclude they are

irrelevant, moot, or without merit.

     To reflect the foregoing,


                                              Decision will be entered

                                         for respondent.