2004 Tax Ct. Summary LEXIS 96">*96 PURSUANT TO INTERNAL REVENUE CODE SECTION 7463(b), THIS OPINION MAY NOT BE TREATED AS PRECEDENT FOR ANY OTHER CASE.
DEAN, Special Trial Judge: This case was heard pursuant to the provisions of
Respondent determined a deficiency in petitioner's Federal income tax of $ 1,398 for 2001. The issues for decision are: (1) Whether petitioner is entitled to a dependency exemption deduction for his daughter for 2001, and (2) whether petitioner is entitled to a child tax credit for 2001.
Background
Some of the facts have been stipulated, and they are so found. The stipulation of facts and the attached exhibits are incorporated herein by this reference. Petitioner2004 Tax Ct. Summary LEXIS 96">*97 resided in New Castle, Delaware, at the time the petition was filed.
Petitioner and Holly Sulecki (Ms. Sulecki) have a daughter, Paige M. Sulecki (Paige). Petitioner and Ms. Sulecki were never married to each other.
Petitioner and Ms. Sulecki lived apart at all times during 2001. Petitioner has never had custody of Paige and is prohibited from having any contact with her. He does not know where Paige resided during the year in issue or how much was spent for her housing or food costs.
Through wage garnishments, petitioner pays $ 366 per month in child support for Paige. Petitioner did not purchase any clothing or gifts for Paige during 2001.
Petitioner timely filed a Federal income tax return for 2001. Petitioner claimed a dependency exemption for Paige as well as a child tax credit. He did not attach a written declaration or Form 8332, Release of Claim to Exemption for Child of Divorced or Separated Parents, executed by Ms. Sulecki.
On her 2001 Federal income tax return, Ms. Sulecki also claimed a dependency exemption for Paige for 2001 as well as a child and dependent care credit. Respondent disallowed petitioner's claimed dependency exemption and child tax credit.
Discussion
2004 Tax Ct. Summary LEXIS 96">*98 Respondent's deficiency determinations in the notice of deficiency are presumed correct, and generally petitioners bear the burden of proving that respondent's determinations of income tax deficiencies are incorrect. Rule 142(a);
1. Dependency Exemption Deduction
A taxpayer may be entitled to claim a dependency exemption deduction for each of his or her dependents.
As to the support test, a taxpayer generally must provide more than half of a claimed dependent's2004 Tax Ct. Summary LEXIS 96">*99 support for the calendar year in which the taxable year of the taxpayer begins. * * * * (2) Exception where custodial parent releases claim to exemption for the year.--A child of parents * * * 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 parent2004 Tax Ct. Summary LEXIS 96">*100 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 temporary regulations promulgated with respect to
Form 8332 requires a taxpayer to furnish: (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 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.
In the present case, petitioner did not have custody of Paige at all during 2001 and therefore cannot be deemed to be the custodial parent for purposes of
Petitioner nevertheless argues that he is current in his obligations regarding child support and that he is entitled to the dependency exemption deductions. The Court is not unsympathetic to petitioner's position. However, the Court is bound by the language of the statute as it is written and the accompanying regulations, when consistent therewith.
2. Child Tax Credit
A taxpayer may be entitled to a credit against tax with respect to each "qualifying child".
As stated supra, the Court has sustained respondent's determination that petitioner is not entitled to a dependency exemption deduction for Paige. Thus, petitioner fails the first prong of the test of
Reviewed and adopted as the report of the Small Tax Case Division.
Decision will be entered for respondent.
1. Temporary regulations are entitled to the same weight as final regulations. See
