T.C. Summary Opinion 2008-73



                       UNITED STATES TAX COURT



         JOSEPH D. AND REBECCA K. LEASE, Petitioners v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 11491-07S.             Filed June 24, 2008.



     Joseph D. and Rebecca K. Lease, pro sese.

     Lisa K. Hunter, for respondent.



     VASQUEZ, 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 be entered is not reviewable by any other court,

and this opinion shall not be treated as precedent for any other



     1
        Unless otherwise indicated, all section references are to
the Internal Revenue Code in effect for the year in issue.
                                - 2 -

case.    Respondent determined a deficiency of $3,303 for 2005.

After concessions, the issues for decision are:      (1) Whether

petitioners are entitled to a dependency exemption deduction for

NL2 as claimed on their 2005 income tax return, and (2) whether

petitioners are entitled to the child tax credit for NL as

claimed on their 2005 income tax return.

                              Background

     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.      Petitioners resided in

Iowa when they filed their petition.

     On March 13, 1995, Joseph D. Lease (petitioner) and Mary E.

Lease (Ms. Lease) divorced.    Petitioner and Ms. Lease had one

child, NL.    The Iowa District Court for Polk County, Iowa,

granted the decree of dissolution of marriage (divorce decree)

awarding custody of NL to Ms. Lease.       The divorce decree further

specified that petitioner could claim the dependency exemption

deduction for NL for odd numbered years if he was current on

child support payments.    Furthermore, the divorce decree required

Ms. Lease to execute and deliver an Internal Revenue Service

(IRS) Form 8332, Release of Claim to Exemption for Child of

Divorced or Separated Parents, to petitioner by January 31 of



     2
        It is the Court’s policy to use initials when referring
to minors.
                               - 3 -

each year after the year for which he was entitled to claim the

dependency exemption deduction.   The presiding judge and the

attorneys of record for both Ms. Lease and petitioner signed the

divorce decree.   Neither Ms. Lease nor petitioner personally

signed the divorce decree.

      After the divorce, Ms. Lease never delivered a signed Form

8332 to petitioner.   Petitioner claimed the dependency exemption

deduction for NL for 1995, 1997, and 1999.   In 2006 petitioners

filed a Form 1040, U.S. Individual Income Tax Return, for 2005.

Petitioners claimed a dependency exemption deduction and a child

tax credit for NL on their 2005 tax return without attaching a

signed Form 8332.   Petitioners attached a copy of the divorce

decree to their 2005 tax return in lieu of the Form 8332.

      Respondent issued a notice of deficiency to petitioners for

2005 denying the claimed dependency exemption deduction and child

tax credit.

                             Discussion

I.   Dependency Exemption

      Section 151 allows taxpayers to claim exemption deductions

for their dependents.   Section 152(a) defines “dependent” as

either a qualifying child or a qualifying relative.   Where the

parents of a dependent child are divorced or legally separated,

section 152(e)(1) generally confers the dependency exemption

deduction on the parent with custody of the child for the greater
                               - 4 -

portion of the calendar year (the custodial parent).     Sec.

152(e)(4)(A).

     Section 152(e)(1) provides that a noncustodial parent is

entitled to the dependency exemption deduction if the

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

allows a custodial parent to relinquish his or her right to claim

the dependency exemption deduction.     A noncustodial parent may

claim the dependency exemption deduction if the custodial parent

executes a written declaration releasing his or her claim to the

dependency exemption deduction and the noncustodial parent

attaches the declaration to his or her tax return.     Sec.

152(e)(2).

     The IRS issued Form 8332 in order to standardize the written

declaration required by section 152(e).    See, e.g., Chamberlain

v. Commissioner, T.C. Memo. 2007-178.    Form 8332 requires a

taxpayer to furnish:   (1) The name of the child; (2) the name and

Social Security number of the noncustodial parent claiming the

dependency exemption deduction; (3) the Social Security number of

the custodial parent; (4) the signature of the custodial parent;

(5) the date of the custodial parent’s signature; and (6) the

year(s) for which the claims were released.    See Miller v.

Commissioner, 

, 190 (2000).    Although taxpayers are

not required to use Form 8332, any other written declaration

executed by the custodial parent must conform to the substance of
                                 - 5 -

Form 8332.    See

   In particular, the document must

satisfy the signature requirement of section 152(e)(2)(A).

    Section 152(e) allows a noncustodial parent to claim the

dependency exemption deduction only when that parent attaches a

valid Form 8332 or its equivalent to a Federal income tax return

for the taxable year for which he or she claims the dependency

exemption deduction.     See Paulson v. Commissioner, T.C. Memo.

1996-560.

     Petitioners concede that they did not attach Form 8332 to

their 2005 tax return.    Petitioners attached the divorce decree

to the 2005 tax return in lieu of Form 8332.

     This case is similar to Miller v. 

.        The

taxpayer in Miller attached a divorce decree in lieu of the Form

8332.   The parties’ attorneys and the presiding judge had signed

the divorce decree.    In Miller the Court found that Congress

intended the signature requirement of section 152(e)(2) to be

strictly applied because it did not want Federal courts involved

in State court custody fights.      The Court further held in Miller

that the signature of neither an attorney nor a judge was

sufficient to satisfy the signature requirement for the parent

relinquishing the dependency exemption deduction.

     Ms. Lease did not sign the divorce decree and thus it did

not meet the signature requirement of section 152(e)(2)(A).

Therefore, petitioners did not file a substantial equivalent to
                                  - 6 -

Form 8332 with their 2005 tax return and are not entitled to

claim the dependency exemption deduction for 2005.

II.   Child Tax Credit

      Section 24 provides a credit against income tax for each

qualifying child of a taxpayer.     The term “qualifying child”

means a qualifying child of the taxpayer as defined in section

152(c) who has not attained the age of 17.        Sec. 24(c)(1).

Therefore, if a child is treated as the qualifying child of the

taxpayer pursuant to section 152(e)(1), the taxpayer is eligible

to claim the section 24 child tax credit.

      As previously discussed, petitioners have failed to meet the

requirements of section 152(e)(2).        Accordingly, they cannot

claim the child tax credit.

      In reaching all of our holdings herein, we have considered

all arguments made by the parties, and to the extent not

mentioned above, we conclude they are irrelevant or without

merit.

      To reflect the following,


                                              Decision will be entered

                                      under Rule 155.