T.C. Memo. 2008-284



                      UNITED STATES TAX COURT



                 WAYNE K. BARRETT, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 15601-06.             Filed December 17, 2008.



     Wayne K. Barrett, pro se.

     Edwina Jones, for respondent.



                        MEMORANDUM OPINION


     WELLS, Judge:   Respondent determined a deficiency of $4,395

in petitioner’s 2004 Federal income tax.     The issues to be

decided are:   (1) Whether petitioner is entitled to section 1511



     1
      Unless otherwise indicated, all Rule references are to the
Tax Court Rules of Practice and Procedure, and all section
references are to the Internal Revenue Code, as amended.
                               - 2 -

dependency exemption deductions for his minor children for

taxable year 2004; and (2) whether petitioner is entitled to a

section 24(a) child tax credit for taxable year 2004.

                            Background

     At the time of filing the petition, petitioner resided in

North Carolina.

     Petitioner timely filed his 2004 Federal income tax return

and claimed dependency exemption deductions and the child tax

credit with respect to his minor children:   R.K.B., J.O.B., and

J.D.B. (hereinafter collectively the children).2

     Petitioner did not live with any of the children at any time

during 2004.   At all times during 2004 the children lived with

their mother, Jill R. Kingdon (hereinafter Ms. Kingdon), who had

sole legal custody.

     Petitioner and Ms. Kingdon provided all of the children’s

support in 2004.

     Petitioner and Ms. Kingdon did not live together at any time

in 2004.

     The record does not contain a written declaration, signed by

Ms. Kingdon, stating that she will not claim the children, or any

one of them, as dependents for the 2004 taxable year; no such

declaration was attached to petitioner’s 2004 tax return.



     2
      The Court refers to minor children by their initials.   See
Rule 27(a)(3).
                                 - 3 -

                               Discussion

Dependency Exemptions

     Section 151(c)(1) provides that an exemption is allowed for

each dependent who is a child of the taxpayer, subject to age

limitations not in issue here.    Section 152(a) defines dependent

to include the son or daughter of a taxpayer over half of whose

support was received from the taxpayer for the calendar year.

There is a special rule where the parents of a child live apart

for the last half of the year and one or both of the parents have

custody of the child for more than half of the year.    See sec.

152(e)(1).   In that case, if the parents together provide over

half of the child’s support for the year, section 152(e)

determines which parent is entitled to claim the child as a

dependent.   Generally, the custodial parent (the parent having

custody for a greater portion of the year) is treated as

providing over half of the support for that child.3    Sec.

152(e)(1).   However, the noncustodial parent may claim the

dependency exemption deduction if the custodial parent executes a

written declaration releasing the custodial parent’s claim to the

deduction.   Sec. 152(e)(2).

     Petitioner and Ms. Kingdon provided all of the support for

the children in 2004.   At all times in 2004 Ms. Kindgon had sole


     3
      This is true whether or not the parents have ever been
married to one another. King v. Commissioner, 

, 251
(2003).
                                - 4 -

legal custody of the children and they lived with her, so she was

the custodial parent.    Ms. Kingdon never executed a written

declaration releasing her right to claim the children as

dependents for taxable year 2004.     Accordingly, Ms. Kingdon is

deemed to have provided over half of the children’s support for

the year.   Therefore, petitioner is not entitled to dependency

exemption deductions for the children for taxable year 2004.

Child Tax Credits

     Subject to limitations based on adjusted gross income, a

taxpayer is entitled to a child tax credit with regard to each

qualifying child of the taxpayer.     Sec. 24(a).   A qualifying

child for purposes of the child tax credit is a child:      (a) For

whom the taxpayer is entitled to a deduction for a dependency

exemption under section 151; (b) who is under the age of 17; and

(c) who bears a relationship to the taxpayer as set forth in

section 32(c)(3)(B).    Sec. 24(c).   The age and relationship tests

are not in dispute in the instant case.     However, petitioner is

not entitled to a dependency exemption deduction with regard to

any of the children, so none of the children is a qualifying

child for purposes of section 24(a).     Consequently, petitioner is

not entitled to a child tax credit for taxable year 2004.
                                 - 5 -

     We have considered all of the contentions and arguments of

the parties that are not discussed herein, and we find them to be

without merit, irrelevant, or moot.4

     To reflect the foregoing,


                                              Decision will be entered

                                         for respondent.




     4
      Petitioner’s main argument seems to be that an error in his
tax preparation software resulted in his underpayment of tax for
2004. Obviously, that is not relevant to the question of whether
petitioner owes the deficiency respondent determined for taxable
year 2004.