MEMORANDUM FINDINGS OF FACT AND OPINION
VASQUEZ, Judge: Respondent determined a deficiency of $ 4,167 in petitioner's 2001 Federal income tax.
The two issues for decision are: (1) Whether petitioner is entitled to claim a dependency exemption for each of his three children for 2001, and (2) whether petitioner can claim a child tax credit for each of his three children for 2001.
FINDINGS OF FACT
Some of the facts have been stipulated and are so found. The stipulation of facts and the attached exhibits are incorporated herein by this reference. 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. At the time he filed the petition, petitioner resided in Fort Worth, Texas.
On March 8, 1995, petitioner divorced Audra Ann Powers (Audra). They had three children during their marriage: Amber Powers, born on September 8, 1987; Wesley Powers, born on October 2, 1989; and Blane Powers, born on March 21, 1994 (collectively, the children). The2005 Tax Ct. Memo LEXIS 150">*151 District Court of Bexar County, Texas, 37th Judicial District, issued an "Agreed Final Decree of Divorce" and named Audra as sole managing conservator of the children, and petitioner was named possessory conservator of the children. In addition, the divorce decree ordered that Audra had sole right to establish the legal residence of the children. During 2001, the children resided with Audra for 9 months and with petitioner for 3 months. Audra was the custodial parent of the children, and petitioner was the noncustodial parent of the children.
The divorce decree ordered petitioner to pay child support in the amount of $ 780 per month to Audra. Petitioner also had to provide health insurance for the children. In 2001, petitioner paid health insurance premiums in the amount of $ 1,043.64 and dental insurance in the amount of $ 179.92. Additionally, petitioner and Audra split the medical expenses for the children.
For 2001, petitioner claimed dependency exemptions and a child tax credit for the children on his Federal income tax. Audra did not sign a release, a waiver, or any other document providing that petitioner could claim the exemptions for the children.
OPINION
Generally, a2005 Tax Ct. Memo LEXIS 150">*152 taxpayer may claim a son or daughter as a dependent if that child meets the statutory definition of dependent.
(A) a child (as defined in
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,
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
2005 Tax Ct. Memo LEXIS 150">*153 year (hereinafter in this subsection referred to as the
"custodial parent").
A noncustodial parent may claim the exemption for a 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."
(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 this case, petitioner claimed the dependency exemptions for the children for the year 2001. Petitioner testified that he provided more than 50 percent of the support of the children and that he should be able to claim dependency exemptions for them for the taxable year 2001. During2005 Tax Ct. Memo LEXIS 150">*155 trial, petitioner also cited to the Agreed Final Decree of Divorce which states in part:
IT IS FURTHER ORDERED AND DECREED that each party shall be
solely entitled to use as a credit against his or her own tax
liability all prepayments and withholdings made by him or her
after the date of divorce and all deductions, exemptions, and
adjustments attributable to his or her income and expenses after
the date of divorce.
Petitioner stated: "I feel that * * * [the divorce decree] reads whoever is providing the most to the children is able to claim them as an exemption."
Audra was the custodial parent for 2001. She had custody of the three children for 9 months of the year, which is over half the year. In addition, Audra did not sign a Form 8332 that she would not claim the children as dependents for the year at issue nor a statement conforming to the substance of Form 8332. Likewise, petitioner did not attach a Form 8332 or similar written statement to his return for 2001. Accordingly, petitioner is not entitled to the dependency exemptions for 2001.
To reflect the foregoing,
Decision will be entered for respondent.