2005 Tax Ct. Summary LEXIS 123">*123 PURSUANT TO INTERNAL REVENUE CODE SECTION 7463(b), THIS OPINION MAY NOT BE TREATED AS PRECEDENT FOR ANY OTHER CASE.
WHERRY, Judge: This case was heard pursuant to
Respondent determined a deficiency in the amount of $ 4,867 in petitioner's Federal income tax for the taxable year 2001. 2 The issues for decision are:
2005 Tax Ct. Summary LEXIS 123">*124 (1) Whether petitioner is entitled to dependency exemption deductions for his two children;
(2) whether petitioner is entitled to an earned income credit in the amount of $ 4,008;
(3) whether petitioner is entitled to head of household filing status; and
(4) whether petitioner is entitled to a child tax credit of $ 300.
Background
Some of the facts have been stipulated and are so found. The stipulations of the parties, with accompanying exhibits, are incorporated herein by this reference. At the time the petition was filed, petitioner resided in Iaeger, West Virginia.
Petitioner was married to Bertha Ann Muncy (Bertha Muncy) on August 1, 1983, in Grundy, Virginia. During their marriage, they had two children, BEM, 3 born in 1988, and KLM, born in 1990.
On June 23, 1997, a divorce proceeding was initiated in the Circuit Court of McDowell County, West Virginia. A Final Order of Divorce (divorce decree) was granted on December 8, 1997, and entered2005 Tax Ct. Summary LEXIS 123">*125 December 23, 1997. The divorce decree specified: Bertha Muncy shall be given custody of the couple's two children, Earl Muncy shall pay child support in the amount of $ 306 per month, and Earl Muncy shall be entitled to claim the income tax exemptions for Federal and State income tax purposes for the two children.
Petitioner timely filed his Form 1040A, U.S. Individual Income Tax Return, for the 2001 taxable year, claiming head of household filing status, two dependency exemption deductions for his children, an earned income credit, and a child tax credit. Respondent issued a notice of deficiency on April 11, 2003, disallowing dependency exemption deductions for petitioner's two children, changing the head of household filing status to single, and denying the earned income credit and child tax credit. Petitioner timely filed the underlying petition in this case on May 16, 2003.
Included in the stipulated exhibits for this case is a copy of a 2001 calendar and accompanying handwritten notations by petitioner. On the calendar, petitioner indicated when the children stayed with him, which included, among other dates, every weekend and a 9-week period in the summer. Petitioner wrote2005 Tax Ct. Summary LEXIS 123">*126 a note on the calendar asserting that the children were dropped off at his house every morning at 6 a.m. for school, and then petitioner bathed them, took them to school, and picked them up from school. Petitioner added that he bought uniforms for the children's after-school activities and paid his child support every month.
Julie S. Muncy (Julie Muncy), petitioner's current wife, testified that she moved in with petitioner on April 8, 2001, and she was present when petitioner's children were dropped off and picked up at his home. Julie Muncy also related that she helped petitioner prepare the calendar to the best of her memory at some time in the year 2002.
The parties also stipulated copies of the children's school records and copies of each child's birth certificate establishing petitioner as each child's father and Bertha Muncy as each child's mother. Petitioner admitted at trial that the children's addresses in the school records were that of their mother, Bertha Muncy. On one of the documents pertaining to BEM, a school counselor included a note stating that BEM currently lived with his mother but that his parents were in the process of going to court to determine whether BEM2005 Tax Ct. Summary LEXIS 123">*127 should live with his father.
At the time of trial, petitioner testified that he presently had custody of his son, BEM, now age 16. However, petitioner did not provide any documentation to establish the custody status of BEM.
As a general rule, the Commissioner's determination of a taxpayer's liability is presumed correct, and the taxpayer bears the burden of proving that the determination is improper.
In general, an exemption is allowed for every dependent of a taxpayer.
Where, as here, the parents of the child are divorced, separated, or living apart at all times during the last 6 months of the calendar year and where one parent has custody of the child for more than one-half of the calendar year, the parent with custody of the child for the greater part of the calendar year (custodial parent) is deemed to have provided over one-half of the support for the child for the calendar year.
However, there is an exception to this rule that effectively shifts the dependency exemption to the parent who is not the custodial parent (noncustodial parent).
Here, the divorce decree gave "care, custody and control" of the children to Bertha Muncy. Furthermore, from a factual standpoint, the record indicates that after taking into account visitation rights, the children spent more than one-half of 2001 with Bertha Muncy. 4 Therefore, despite the fact that petitioner was a loving father often taking care of the children for a period of time both before and after school and on weekends, Bertha Muncy is the custodial parent, and petitioner is the noncustodial parent.
The Internal Revenue Service created Form 8332, Release2005 Tax Ct. Summary LEXIS 123">*130 of Claim to Exemption for Child of Divorced or Separated Parents, to effect the custodial parent's waiver of the dependency exemption. However, to meet the requirements of
Petitioner did not submit a Form 8332, and at trial, he admitted that he had not attempted to obtain a Form 8332 from Bertha Muncy. The question therefore is whether the divorce decree conforms to the substance of Form 8332 and satisfies the requirements of 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 Social Security number of the parent claiming the exemption. * * *
Specifically, "Satisfying the signature requirement [of the custodial parent] is critical to the successful release of the dependency exemption within the meaning of
In this case, the divorce decree included the names of petitioner's children, and the names and Social Security numbers of both the custodial parent and noncustodial parent were handwritten on a page of the divorce decree. In contrast, information concerning the years for which the dependency exemptions for the children were released, the date of the signature of the custodial parent, and, most importantly, the signature itself consenting to the release were absent from the divorce decree. Therefore, the divorce decree did not conform in substance to Form 8332, and, consequently, it did not fulfill the requirements of
BEM and KLM each satisfied all but the residency test. As a son and a daughter, respectively, of petitioner, they each satisfied the relationship test. See
The residency test requires that the qualifying child have the same principal place of abode within the United States as the taxpayer for more than one-half of the taxable year.
Nonetheless, individuals who do not have any qualifying children may also be eligible under
As pertinent to this case, head of household filing status is available if an individual is not married at the close of the taxable year and provides for more than one-half of the taxable year a home which is the principal place of abode for the individual's son or daughter.
Although petitioner's divorce decree dated December 8, 1997, was entered on December 23, 1997, it is not apparent from the record whether he was married to his current wife, Julie Muncy, at the close of the 2001 taxable year. However, we need not address petitioner's marital status during that year because petitioner fails to meet the principal place of abode requirement. As determined above, petitioner's home did not constitute the principal place of abode for his children during 2001. Because of this fact, petitioner does not meet the criteria for the head of household filing status.
As a2005 Tax Ct. Summary LEXIS 123">*137 son or a daughter of petitioner, petitioner's children meet the relationship test. During the year in issue, neither child had attained the age of 17. BEM was 13 years old and KLM was 11 years old at the close of the taxable year. However, as previously discussed, petitioner is not eligible to claim a dependency exemption deduction for either child for 2001. Thus, petitioner is not allowed a child tax credit.
The Court found the testimony of petitioner and Julie Muncy to be credible and sincere. Per the divorce decree, petitioner was entitled to the dependency exemptions for both of his children. However, Congress designed the requirements of
This Court is sympathetic to petitioner's case; nevertheless, since petitioner did not satisfy the requirements of
To reflect the foregoing,
Decision will be entered for respondent.
1. Unless otherwise indicated, all section references are to the Internal Revenue Code (Code) in effect for the year in issue, and all Rule references are to the Tax Court Rules of Practice and Procedure.↩
2. Monetary amounts are rounded to the nearest dollar.↩
3. The Court uses only the initials of the minor children.↩
4. See infra Part II.↩
5. The record in this case is insufficient to permit a determination whether the divorce decree was attached to petitioner's return when filed.↩
6. To the extent that petitioner also attempts in his petition to raise as an issue the $ 265 in statutory interest due on the deficiency through Mar. 16, 2003, this matter is not properly before the Court. See secs. 6215, 6404(h), 7481(c).↩