T.C. Summary Opinion 2010-48



                     UNITED STATES TAX COURT



                PAUL NELSON WHITE, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 9283-08S.             Filed April 15, 2010.



     Paul Nelson White, pro se.

     Orsolya Kun, for respondent.



     GOLDBERG, 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
                               - 2 -

Revenue Code in effect for the year in issue, and all Rule

references are to the Tax Court Rules of Practice and Procedure.

     Respondent determined a $1,707 deficiency in petitioner’s

Federal income tax for 2006.   The issue for decision is whether

petitioner is entitled to dependency exemption deductions for his

two children.

                            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.    Petitioner resided in New

York when he filed his petition.

     Petitioner married Jeannette B. Gonzalez (Ms. Gonzalez) in

June 1989 in a religious ceremony.     Around this time, petitioner

began working for the State of New York as a corrections officer,

a job at which he continued to work as of trial.    Petitioner and

Ms. Gonzalez had two children together, Crystal born in April

1988 and Paul born in August 1989.

     During the marriage Ms. Gonzalez earned a 2-year degree in

nursing from Bronx Community College.    She worked for North

Central Bronx Hospital and then for a private home healthcare

company.   Ms. Gonzalez abruptly stopped working in 2003 claiming

injury and illness.   She also abruptly left the marital home with

the two children in September 2003, moving to Florida, and later

asserting petitioner’s constructive abandonment.
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     Petitioner has had no direct contact with Ms. Gonzalez since

she left their home in 2003.   In subsequent family court

proceedings Ms. Gonzalez would not produce Forms W-2, Wage and

Tax Statement.   She claimed that she was unemployed, but

petitioner believes Ms. Gonzalez was working as a nurse in

Florida.   Near the end of 2006 Ms. Gonzalez returned to New York,

residing in Yonkers with Crystal and Paul.

     The children maintained telephone contact with petitioner.

However, other than a prearranged visit to the children in

Florida in 2004 and a chance encounter in Yonkers, petitioner has

not seen Crystal or Paul since Ms. Gonzalez took them to Florida.

     From Florida, Ms. Gonzalez initiated a separation petition

in October 2004, culminating in entry on August 1, 2005, of a

“Final Order of Support” by the Family Court of the State of New

York in the County of Bronx, New York.   The order required

petitioner to make biweekly child support payments of $541, pay

retroactive child support of $8,128.11, and provide health

insurance coverage for the children until they each reach age 21.

     The New York Supreme Court for Bronx County entered a

“Judgment of Divorce” on October 27, 2006, incorporating

petitioner’s child support obligation from the August 1, 2005,

support order.   Additionally, the judgment of divorce provided

the following provision regarding custody of the children:
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     The children of the marriage now reside with Plaintiff
     [Ms. Gonzalez]. The Plaintiff [Ms. Gonzalez] shall
     have custody of the children of the marriage * * *.
     The Defendant [petitioner] is entitled to visitation
     away from the custodial residence.

     Petitioner remains current on his child support payments,

which his employer deducts automatically from his paycheck.

Petitioner continues to send additional money and presents, such

as computers and iPods, to his children.   Petitioner attempted to

visit the children, but Ms. Gonzalez refused his requests and

evaded his attempts to serve her with summonses to enforce his

visitation rights.

     The judgment of divorce was silent as to which parent is

entitled to claim the dependency exemption deduction for each

child.   In anticipation of claiming the children as dependents on

his 2006 Federal income tax return, petitioner contacted the

Internal Revenue Service (IRS).   An IRS agent suggested that

petitioner send a Form 8332, Release of Claim to Exemption for

Child of Divorced or Separated Parents, to Ms. Gonzalez.

Petitioner sent the form to Ms. Gonzalez, but he never received

it back.   The record is silent as to the address to which

petitioner mailed the form.   Petitioner informed the IRS of Ms.

Gonzalez’s nonresponse, and another IRS agent suggested that he

submit a Form 3949 A, Information Referral, to the IRS formally

notifying the IRS of the nonresponse.   Petitioner complied.
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     Petitioner filed his 2006 Federal income tax return as

single.    He reported wages of $103,612, interest of $900, and a

State income tax refund of $274, for total and adjusted gross

income of $104,786.   He deducted itemized deductions of $25,432,

and three exemptions totaling $9,900 consisting of an exemption

for himself and dependency exemption deductions for his two

children.    Petitioner did not attach a Form 8332 or any statement

to his return with respect to the children.   Respondent issued a

notice of deficiency disallowing the two dependency exemption

deductions.

                             Discussion

     In general, the Commissioner’s determination set forth in a

notice of deficiency is presumed correct, and the taxpayer bears

the burden of showing that the determination is in error.    Rule

142(a); Welch v. Helvering, 

, 115 (1933).    Under

section 7491(a) the burden may shift to the Commissioner

regarding factual matters if the taxpayer produces credible

evidence and meets the other requirements of the section.

Petitioner has neither alleged that section 7491(a) applies nor

established his compliance with its requirements.    Petitioner

therefore bears the burden of proof.

     Petitioner’s main contentions are that he is entitled to

dependency exemption deductions for Crystal and Paul for 2006

because:    (1) He paid a large sum of money toward their support
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during 2006, principally $14,066 ($541 times 26 payments) in

child support payments, an additional amount for their inclusion

on his health insurance policy at work, and gifts; and (2) he

followed all the instructions respondent provided to claim the

dependency exemption deductions, particularly mailing the Form

8332 to Ms. Gonzalez asking for her waiver of the deduction.

     On the other hand, respondent asserts that petitioner is not

entitled to dependency exemptions deductions for Crystal and Paul

for 2006 because Ms. Gonzalez was the custodial parent of the

children in 2006, and consequently petitioner had a statutory

requirement to attach, but did not attach, documentation to his

2006 Federal income tax return establishing that Ms. Gonzalez had

waived her claim to the exemptions.     We now turn to analyzing the

parties’ contentions.

     Generally, a taxpayer is entitled to claim as a deduction an

exemption amount for each of his or her dependents.     Sec. 151(c).

The definition of a dependent includes a qualifying child or a

qualifying relative.    Sec. 152(a).    Pertinent here, a qualifying

child is an individual who is a child of the taxpayer, shares the

same principal place of abode as the taxpayer, has not attained

the age of 19 or is a student and has not reached age 24 at the

close of the calendar year, and has not provided over one-half of

his own support.   Sec. 152(c); Brissett v. Commissioner, T.C.

Memo. 2003-310.
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     In applying these requirements to Crystal and Paul, we find

that at no time during 2006 did Crystal or Paul share the same

principal place of abode as petitioner.    Therefore, the children

did not satisfy the place of abode test of section 152(c)(1)(B)

with respect to petitioner for 2006.    Consequently, neither child

was petitioner’s qualifying child for 2006.

     Turning to the definition of a qualifying relative, the

individual must:   (1) Bear a relationship to the taxpayer that is

defined in section 152(d)(2); (2) have income less than the

exemption amount; (3) have the taxpayer provide more than

one-half of the individual’s support for the year; and (4) not be

a qualifying child of the taxpayer or any other taxpayer for the

year.   Sec. 152(d)(1).   Crystal and Paul bore the proper

relationship to petitioner; they are his children, satisfying the

relationship test set forth in section 152(d)(2)(A).    However,

petitioner did not provide sufficient evidence regarding the

other three requirements.    Because Crystal was age 18 and Paul

was age 17, in 2006 they each may have earned more than the

exemption amount from a summer job or other employment.

Similarly, although petitioner paid more than $14,066 to support

the children, we do not have information regarding the children’s

total support.   Ms. Gonzalez apparently furnished housing, food,

and possibly other amounts toward their support.    Additionally,

petitioner did not provide evidence regarding the fourth
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requirement, that the children were not the qualifying children

of any other taxpayer for the year.    See sec. 152(d)(1)(D).

Because petitioner has the burden of proving his entitlement to a

deduction, and because he did not establish the elements

necessary to claim the children as his qualifying relatives, we

conclude they are not.

     Notwithstanding the above results, petitioner still has a

possibility to claim a dependency exemption deduction under

section 152(e), which provides a special rule for children of

divorced parents.   Under section 152(e)(1), as relevant here, a

noncustodial parent may treat a child as a qualifying child,

notwithstanding the failure to satisfy the place of abode test of

section 152(c)(1)(B), if the parents provided over one-half of

the child’s support, the parents are divorced, and the parents

lived apart at all times during the last 6 months of the year.

Section 152(e)(2) adds a requirement that “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.”    Sec. 1.152-4T(a),

Q&A-3, Temporary Income Tax Regs.,1 49 Fed. Reg. 34459 (Aug. 31,



     1
      Temporary regulations are entitled to the same weight as
final regulations. See Peterson Marital Trust v. Commissioner,

, 797 (1994), affd. 

(2d Cir. 1996); Truck
& Equip. Corp. v. Commissioner, 

, 149 (1992).
                               - 9 -

1984); see also Miller v. Commissioner, 

, 188-189

(2000), affd. on another ground sub nom. Lovejoy v. Commissioner,

(10th Cir. 2002).   The declaration must be made

either on a completed Form 8332 or on a statement conforming to

the substance of Form 8332.   Miller v. 

at

189; Brissett v. 

.

     Form 8332 requires a taxpayer to furnish:   (1) The name of

the child, (2) the specific years of release, (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 noncustodial parent claiming the

exemption.   Miller v. 

at 190.

     Petitioner did not attach a Form 8332 or any declaration to

his 2006 Federal income tax return indicating that Ms. Gonzalez

consented to releasing her claim to the exemption.   Because

section 152(e) requires strict compliance, the failure to attach

Form 8332 or a conforming declaration is sufficient grounds to

deny the deduction.   See Brissett v. 

.

Accordingly, petitioner does not qualify for a dependency

exemption deduction for 2006 under the exception to the residency

requirement that section 152(e) provides.

     We note further that because Crystal was born in April 1988,

she reached age 18 in April 2006.   When a child reaches the age
                               - 10 -

of majority, the child is no longer in the custody of either

parent.   Boltinghouse v. Commissioner, T.C. Memo. 2007-324.    In

Florida and New York, Crystal’s two States of residence during

2006, age 18 is the age of majority.    Fla. Stat. Ann. sec. 743.07

(West 2005); NY Dom. Rel. Law sec. 2 (McKinney 1999); NY Fam. Ct.

Act sec. 119(c) (McKinney 2008); NY Gen. Oblig. Law sec. 1-202

(McKinney 2001); Fankhanel v. Commissioner, T.C. Memo. 1998-403

(discussing age 18 emancipation in Florida as rendering section

152(e) inoperable), affd. without published opinion 

(4th Cir. 2000); Prinze v. Jonas, 

, 298 (N.Y.

1976).    Therefore, even if petitioner had attached a waiver form

from Ms. Gonzalez, section 152(e) was unavailable with respect to

Crystal for 2006 because Crystal had become emancipated under

State law.

     In summary, we sympathize with petitioner because he has not

been able to visit his children, and we commend petitioner’s

ongoing financial and parental support of his children despite

difficult circumstances.    Unfortunately however, for the reasons

explained above, petitioner has not meet the requirements to

support his claim for dependency exemption deductions for 2006.

     We have considered all of the parties’ contentions and

arguments that are not discussed herein, and we conclude they are

without merit, irrelevant, and/or moot.
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To reflect the foregoing,


                                  Decision will be entered

                             for respondent.