T.C. Summary 2003-85



                     UNITED STATES TAX COURT



               RHONDA HOPE HAMILTON, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent

              RICKY DERRELL HAMILTON, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket Nos. 8101-02S, 8545-02S.     Filed June 25, 2003.


     Rhonda Hope Hamilton, pro se in docket No. 8101-02S.

     Ricky Derrell Hamilton, pro se in docket No. 8545-02S.

     Amy Dyer Seals, for respondent.


     POWELL, Special Trial Judge:   These consolidated cases1

were heard pursuant to the provisions of section 74632 of the


1
    These cases were consolidated for purposes of trial,
briefing, and opinion because they involve common questions of
fact and law arising from the residence of petitioners’ daughter.
2
    Unless otherwise indicated, subsequent section references are
to the Internal Revenue Code in effect for the year in issue.
                               - 2 -

Internal Revenue Code in effect at the time the petitions were

filed.   The decisions to be entered are not reviewable by any

other court, and this opinion should not be cited as authority.

     By separate notices of deficiency respondent determined a

deficiency of $2,185 in the 1999 Federal income tax of petitioner

Rhonda Hope Hamilton (Ms. Hamilton) at docket No. 8101-02S and a

deficiency of $2,218 in the 1999 Federal income tax of petitioner

Ricky Derrell Hamilton (Mr. Hamilton) at docket No. 8545-02S.

After concessions,3 the issues are (1) whether Ms. Hamilton is

entitled to an earned income credit (EIC) with respect to Rebecca

Hope Hamilton (Rebecca), petitioners’ minor daughter; (2) whether

Ms. Hamilton is entitled to use head of household filing status;

(3) whether Mr. Hamilton is entitled to a dependency exemption

deduction with respect to Rebecca; and (4) whether Mr. Hamilton

is entitled to a child tax credit with respect to Rebecca.   Ms.

Hamilton resided in Newberry, South Carolina, and Mr. Hamilton

resided in Prosperity, South Carolina, at the time the petitions

were filed.

                            Background

     Petitioners were divorced in 1990.   By a consent decree

dated November 25, 1996, the Family Court of the County of


3
     Respondent conceded that Mr. Hamilton is entitled to claim a
dependency exemption deduction and a child tax credit of $500
with respect to Richard Hamilton, petitioners’ minor son, and to
the head of household filing status. As a result of these
concessions, Mr. Hamilton’s deficiency is reduced to $998.
                               - 3 -

Newberry, State of South Carolina, entered an order awarding Ms.

Hamilton custody of Rebecca.   While Ms. Hamilton had legal

custody during 1999, there are ambiguities with respect to where

Rebecca resided and the duration of Rebecca’s residence.    She

spent time with both parents, and both parents contributed to her

support.

     On their separate 1999 Federal income tax returns, both

petitioners claimed head of household filing status and a

dependency exemption deduction and an EIC with Rebecca as a

qualifying child.   Additionally, Mr. Hamilton claimed a child tax

credit with respect to Rebecca.

     In the notice of deficiency issued to Ms. Hamilton,

respondent determined that she was the custodial parent of

Rebecca and allowed her the dependency exemption deduction.

Respondent, however, disallowed Ms. Hamilton’s claimed head of

household filing status and the EIC with respect to Rebecca.      As

to Mr. Hamilton, respondent disallowed the claimed dependency

exemption deduction and the child tax credit with respect to

Rebecca.

                            Discussion

Earned Income Credit

     Section 32(a) generally provides eligible individuals with

an EIC against their income tax liability.   An "eligible

individual" is defined as an individual who has a "qualifying
                               - 4 -

child" for the taxable year.   Sec. 32(c)(1)(A)(i).4   Sec.

32(c)(3)(A)(ii) provides that a “qualifying child” must have “the

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

half” of the taxable year.   Respondent concedes that if Rebecca

had the same principal place of abode as Ms. Hamilton for more

than one-half of 1999 then Ms. Hamilton qualifies for the EIC

with respect to Rebecca.   While the evidence is perhaps less than

clear as to where Rebecca’s abode was at any given time, we

believe that her principal place of abode was with Ms. Hamilton

for more than one-half of 1999.5

Head of Household Filing Status

     As relevant herein, Ms. Hamilton qualifies for head of

household filing status if she (1) was not married at the close

of the taxable year, and (2) maintained as her home “a household

which constitutes for more than one-half of such taxable year the

principal place of abode” of a daughter.   Sec. 2(b)(1)(A).   As

discussed above, we find that Rebecca’s principal place of abode

was with Ms. Hamilton, and Ms. Hamilton qualifies as head of a

household for 1999.




4
     An eligible individual also includes an individual without a
qualifying child who meets certain criteria. See sec.
32(c)(1)(A)(ii). Respondent concedes that Ms. Hamilton is
entitled to an EIC as an individual without a qualifying child.
5
     Sec. 7491(a), concerning burden of proof, has no bearing on
the underlying substantive issue.
                               - 5 -

Dependency Exemption

     Sections 151 and 152 provide that a taxpayer is entitled to

deduct an exemption for a minor dependent if the taxpayer

provides over half of the support for the minor dependent.    In

the case of a minor dependent whose parents are divorced or

separated and together provide over half of the support for the

minor dependent, section 152(e)(1) provides that the parent

having custody for a greater portion of the calendar year

(“custodial parent”) generally shall be treated as providing over

half of the support for the minor dependent.   Custody is

“determined by the terms of the * * * custody decree”.    Sec.

1.152-4(b), Income Tax Regs.

     A noncustodial parent, however, may be treated as providing

over half of the support for the minor dependent if the

requirements of section 152(e)(2) are satisfied.   Section

152(e)(2) provides:

          (2) Exception where custodial parent releases claim to
     exemption for the year.–-A child * * * 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.
                               - 6 -

     The Internal Revenue Service prescribed Form 8332, Release

of Claim to Exemption for Child of Divorced or Separated Parents,

as the appropriate form in which the noncustodial parent may

satisfy the written declaration requirement of section 152(e)(2).

See Miller v. Commissioner, 

, 190 (2000), affd. on

another ground 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).6    Mr. Hamilton failed

to provide a Form 8332 or any other documentation to establish

that Ms. Hamilton waived her right to the dependency exemption

deduction with respect to Rebecca.     We hold that Mr. Hamilton is

not entitled to the dependency exemption deduction with respect

to Rebecca.   See McCarthy v. Commissioner, T.C. Memo. 1995-557;

Ferguson v. Commissioner, T.C. Memo. 1994-114.

Child Tax Credit

     Section 24(a) provides that a taxpayer may claim a credit

for “each qualifying child”.   A qualifying child is defined,

inter alia, as any individual if “the taxpayer is allowed a

deduction under section 151 with respect to such individual for

the taxable year”.   Sec. 24(c)(1)(A).   For the reasons stated



6
     Temporary regulations are entitled to the same weight as
final regulations. See Peterson Marital Trust v. Commissioner,

, 797 (1994), affd. 

 (2d Cir. 1996); Truck
& Equip. Corp. v. Commissioner, 

, 149 (1992); see also
LeCroy Research Sys. Corp. v. Commissioner, 

, 127 (2d
Cir. 1984), revg. on other grounds T.C. Memo. 1984-145.
                              - 7 -

above, Mr. Hamilton may not claim a dependency exemption

deduction with respect to Rebecca under section 151, and,

therefore, he may not claim the child tax credit.

     Reviewed and adopted as the report of the Small Tax Case

Division.

                                           Decisions will be entered

                                      under Rule 155.