Angela J. Brown, Petitioner

T .C . Summary Opinion 2010-5 6

UNITED STATES TAX COUR T

ANGELA J . BROWN, Petitioner v . COMMISSIONER OF INTERNAL REVENUE, . Responden t Filed April 29, 2010 .

DEAN, Special Trial Judcre : This case was heard pursuant t o the provisions of section 7463 ofthe 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 case . Unless otherwise indicated, subsequent section reference s are to the Internal Revenue Code in effect for the year in issue, x

SERVO APR 2 9 2010

and Procedure .

The issue for decision .is whether petitioner is entitled to a dependency, exemption deduction for her daughter for 2006 .

Backgroun d 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 petitioner filed her petition, she resided in the State of Washington .

Petitioner timely filed Form 1040, .U .S . .Individual Incom e Tax Return, for 20.06 and claimed a dependency exemption deduction ` for her daughter, SWB .1 Petitioner was not"the . custodial parent of SWB .for 2006, and she,did not attach Form 8332, Release of Claim to Exemption for'Child of Divorced or Separated Parents, or its equivalent, to her Form 1040 .

In 2006 SWB did .not reside with petitioner but resided wit h her father . ,SWB's father also claimed SWB as a dependent on .hi s .Respondent issued a notice of deficiency on January 30 , 200 .9, . disallowing petitioner's claimed dependency exemptio n deduction for SWB .

'The Court refers to minor children by their initials : Rul e 27 (a) (3) .

Burden of Proo f Discussio n Generally, the Commissioner's determinations are .presume d correct, and the taxpayer bears the burden of proving that thos e I determinations are erroneous .? Rule 142(a) see INDOPCO, Inc . v .

Commissioner , 503U .S 79, 84(1992) ; Welch v . Helverina , 29 0 U .S . 111, 115 (1933)' .

II .

Dependency Exemption Deduction s Section 151 .(c), in pertinent part, allows a taxpayer t claim as a deduction .the exemption amount for each individual wh o is a "dependent" of `the taxpayer as defined in section 152 and who is the taxpayer's child and satisfies` certain age requirements .

Section 152(a) defines "dependent" to mean`a qualifyin g child or a qualifying relative of the taxpayer . In the case o f divorced or separated parents, section 152 (e)''(1) provides `tha t 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 o r qualifying relative of the noncustodial parent only if the requirements of section - 152 (e) (2) or (3) are :met .

2Petitioner has not claimed or shown that she meets the requirements under sec . . 7491(a) to shift the burden of proof to respondent as to any factual issue relating to her liability for tax .

Section 152(e) .(2) provides :

"if * * .* the custodial, . paren t signs a written declaration (in such ' mannerand . .form as th e Secretary may by regulations pre-scrib'e )" 'that he or (cid:127)she will-ho t claim the chil=d as a, dependent and . . the noncustodial parent attaches the written : declaration-to his or-h .er return,for :,the taxable, year, then~the noncustodial, parent is entitled to th e 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) .

The written declaration, may be made- .on a form provided by ` the Internal Revenue, Service,or a document that conforms to'it s substance .' Miller v .. Commissioner , 114 T .C . 184, . ;190-191 (2000) ; (citing sec- . 1 .152- .4T(a),,Q&A-3, Temporary Income Tax Regs .,;,49 ..

Fed . Reg . 34, ;459 (Aug ., 31,, 1,984)j ;,, see. also Neal : v . Commissioner, T .C~: .Memo . 1999-97 . The written declaration is' embodied in,,For m 8332, and,,it incorporates the requirements, of- section 152(e)(2) .

Miller v . Commissioner , supra at 190,:

Petitioner does not contest . failing to attach a valid, Form 8332, or, its equivalent,, to,. her 2006 return ., . Instead,, sh e provided a copy, of Form 8332 . dated' February 13, .2009, purportedly: , signed by the custodial parent, and asks the, Court t o retroactivel y apply it to her 2006 return . Respondent, 'however , also . provided a copy of Form 8332 ; signed by the custodial parent,'which purports to `r`elease the claim 'for exemption f .

future years but on the line for the name of the child to which it relates is the stamped language "Revoked Effective 29 January 2009" . Petitioner admitted that the signature on the Form 8332 respondent provided is the signature of the custodial parent .

Section 152(e) grants the dependency exemption to a .

noncustodial parent only where he or she attaches a valid Form 8332 or its .; equivalent tofia Federal income tax return for th e taxable year for which he or she claims the-exemption . See Presley v . Commissioner , T .C .-Memo .°1996-553 . Petitioner did not attach`a valid Form 83 .32 .to her'2006 return, and it is impossible to determine, based on the record, whether the custodial paren t executed a valid Form 8332 or intended to revoke a . prior Form 8332 . Accordingly, we sustain respondent's disallowance of th e dependency exemption deduction for SWB for 2006 .

To reflect the foregoing, Decision will be entered for respondent .