T.C. Summary Opinion 2010-45



                      UNITED STATES TAX COURT



    PAUL EDWARD HENDRICKSON AND CYNTHIA PUSATERI-HENDRICKSON,
                          Petitioners v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 31302-08S.               Filed April 14, 2010.



     Jonathan Decatorsmith, for petitioners.

     Robyn R. Gilliom, for respondent.



     DEAN, Special Trial Judge:   This case was heard pursuant to

the provisions of section 7463 of the Internal Revenue Code in

effect at the time 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 case.   Unless otherwise indicated, subsequent

section references are to the Internal Revenue Code in effect for
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the year in issue, and all Rule references are to the Tax Court

Rules of Practice and Procedure.

     For 2006 respondent determined a deficiency of $3,650 in

petitioners’ Federal income tax.    The issues for decision are

whether petitioners:   (1) Are entitled to dependency exemption

deductions for petitioner Paul Edward Hendrickson’s (Mr.

Hendrickson) two daughters for 2006; and (2) are entitled to

child tax credits for his two daughters for 2006.

                            Background

     Some of the facts have been stipulated and are so found.

The stipulation of facts and the attached exhibits are

incorporated herein by reference.    When petitioners filed their

petition, they resided in Illinois.

     Petitioners timely filed a joint Federal income tax return

for 2006.   Petitioners claimed two dependency exemption

deductions and child tax credits for Mr. Hendrickson’s daughters.

Petitioners did not attach Form 8332, Release of Claim to

Exemption for Child of Divorced or Separated Parents, or its

equivalent, to their Form 1040, U.S. Individual Income Tax

Return.

     In 2006 Mr. Hendrickson’s children did not reside with him,

but lived with Mr. Hendrickson’s ex-wife, who was the custodial

parent of the children.   Petitioners, however, supported the

children financially, and a 2008 State court order awarded Mr.
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Hendrickson the dependency exemption deductions for his children,

retroactive to tax year 2005.    The court order was signed by the

judge and by Mr. Hendrickson’s attorney, but it was not signed by

Mr. Hendrickson’s ex-wife, the custodial parent.

       Respondent issued a notice of deficiency on May 16, 2008,

disallowing petitioners’ claimed dependency exemption deductions

and child tax credits for Mr. Hendrickson’s daughters.

                             Discussion

I.    Burden of Proof

       Generally, the Commissioner’s determinations are presumed

correct, and the taxpayer bears the burden of proving that those

determinations are erroneous.1    Rule 142(a); see INDOPCO, Inc. v.

Commissioner, 

, 84 (1992); Welch v. Helvering, 

, 115 (1933).

II.    Dependency Exemption Deductions

       Section 151(c), in pertinent part, allows a taxpayer to

claim as a deduction the exemption amount for each individual who

is a “dependent” of the taxpayer as defined in section 152 and

who is the taxpayer’s child and satisfies certain age

requirements.




       1
      Petitioners have not claimed or shown that they meet the
requirements under sec. 7491(a) to shift the burden of proof to
respondent as to any factual issue relating to their liability
for tax.
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     Section 152(a) defines “dependent” to mean a qualifying

child or a qualifying relative of the taxpayer.

     In the case of divorced or separated parents, section

152(e)(1) provides that when a child is in the custody of one

parent for over one-half of the year, the child is treated as

being the qualifying child or qualifying relative of the

noncustodial parent only if the requirements of section 152(e)(2)

or (3) are met.2

     Section 152(e)(2) provides:   “if * * * the custodial parent

signs a written declaration (in such manner and form as the

Secretary may by regulations prescribe)” that he or she will not

claim the child as a dependent and the noncustodial parent

attaches the written declaration to his or her return for the

taxable year, then the noncustodial parent is entitled to the

dependency exemption deduction.    For purposes of section

152(e)(2), the term “noncustodial parent” means the parent who is

not the custodial parent.   See sec. 152(e)(4)(A), and (B).

     The written declaration may be made on a form provided by

the Service or a document that conforms to its substance.     Miller

v. Commissioner, 

, 190-191 (2000) (citing sec. 1.152-




     2
      The exceptions in sec. 152(e)(3) and (5) do not apply.
There was no multiple support agreement, and there is no pre-1985
instrument. Thus, petitioners are entitled to the dependency
exemption deductions only if the requirements of sec. 152(e)(2)
are met.
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4T(a), Q&A-3, Temporary Income Tax Regs., 49 Fed. Reg. 34459

(Aug. 31, 1984)), affd. on other grounds sub nom. Lovejoy v.

Commissioner, 

(10th Cir. 2002); see also Neal v.

Commissioner, T.C. Memo. 1999-97.    The written declaration is

embodied in Form 8332, and it incorporates the requirements of

section 152(e)(2).    Miller v. Commissioner, supra at 190.

       The parties agree that Mr. Hendrickson’s ex-wife is the

custodial parent as defined in section 152(e)(4)(A).      Although

petitioners provided a signed State court order entitling Mr.

Hendrickson to the dependency exemption deductions for his

daughters, it does not contain the signature of the custodial

parent.

       Although the Court understands the difficulty of

petitioners’ situation, the Court is unable to disregard the

unambiguous requirements of section 152(e)(2) for claiming a

dependency exemption deduction.    Because petitioners did not

provide a Form 8332 or its equivalent signed by the custodial

parent the Court must disallow the dependency exemption

deductions.

III.    Child Tax Credit

       Subject to the limitation based on adjusted gross income in

section 24(b)(1), section 24(a) provides a credit with respect to

each qualifying child of the taxpayer.    Section 24(c)(1) defines

the term “qualifying child” as a “qualifying child of the
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taxpayer (as defined in section 152(c)) who has not attained age

17.”    It has not been shown that Mr. Hendrickson’s daughters are

to be treated as his qualifying children.        Therefore, petitioners

are not entitled to claim these children as qualifying children

for purposes of the child tax credit.

       To reflect the foregoing,


                                           Decision will be entered

                                    for respondent.