Olivier Defernez, Petitioner

T . C . Summary Op iriion 2011- 8 7 UNITED STATES TAX COURT LIVIER DEFERNEZ, Petitioner _v COMMISSIONER OF INTERNAL REVENUE, Respondent Docket No. 13195-10S.

Filed July 11 2011.

Olivier De f e cne z, , pro se Chad Martine Lli and Lindsey Munyer (student) for respondent .

JACOBS, Judge: This case was heard pursuant to the provisions of sec ion 7463 of the Internal Revenue Code in ef fect when the petition was filed ursuant to section 746 (b) , t he decisión to be en ered is'not reviewable by any other court and this opinion shall not be treated as precedent for any other case. Unless otherwise indicated, all section references are sto

ED JUL 1

1 2011 the Internal Revenue Code in effect for 2007, and all Rule references are to the Tax Cotirt Rules of Practice and Procedure.

Respondent, determined a deficiency of $1,553 in petitioner's Federal income tax for 2007.

The issues for decision are:

(1) Whether petitioner, as the n(ncustodial parent, is entitled to a dependency exemption deduct ion for his minor ahild; and (2) whether petitioner is entitl d to a child tax credit .

Backgròund Some of the fadts have en stil;>ulated,. and they are so found We incorporate by reference the parties' stipulation of facts and acbompanying exhibits. At the time he filed his petition, pétitioner resided in Cali'fornia.

Petitioner and/his fo m r wife, Kelly Défernez (Ms.

Defernez), had one dhild, TDD, born in 20Ô0.

Ms. Defernez and petitioner divorced in 2006; they lived apart throughout 2007.

Pursuant to the divorce decree dated Ju y 28, 2006 legal custody of TDD was awarded oir tly "to petitioner and, Ms Defernez, Ms Defernez was given primary custody.

Petitioner was required to pay súpport for. TDD of $500 per month Paragraph 3 of thei divoïrce dédred statás tioner] and wifE[Msg 4DefernŠz] agree that Husbarid [plt Husband will be entitled to claim the minor child as dependenti on Hiå inabnie itax ~return. Both Husband and Wife agree they will file their individual income tax returns The Court refers to minor children by théir initials.

See Rule 27 (a) (3) |- m· It is a the income tax the parties that the present provision.

consistentaith the terms of the intention of consequences of any dependent exemption and/or deduction regarding their minor child be interpreted consistently with the present agreement . Pursuant Domestic Relations Tax Reform Act of 1984 and any amendments as amended, Husband and Wife agree to transfer their dependency exemptions in accordance with the present agreement and upon remand by the other, to provide a written declaration in such form as provided by the Internal Revenue Service dec aring their intentions regarding claims for such dependency exemptions related to their minor child a and the Internal Revenue Code Section 152 (e) (2) , to the requirements of the Paragraph 29 Eof the -divorce decree states :

Notwithstanding the above or any other provision in this Agreement, any parent, whether Husband or Wife, current- on his or ther child support dbligation, party, whether Husband or Wife, entitled to claim any dependency exemption and/or dependent credit related to the child.

in no event shall be that then that is not Petitioner satisfied his child support obligation for 2007.

TDD did not live with petitioner for more than half of 2007.

Petitioner timely filed his 2007 Federal income tax return claiming (1) a dependency exemption dedu tion for TDD, and (2) child tax credit of $1, 000 . Petitioner did not attach a copy of the divorce decree or attach Form 8332, Release of Claim to Exemption for Child of Divorced or Separated Parents, to his 2007 Federal income tax return.

Despite the agreement of the spouses as set forth in paragraph 13 of t he dïvorce decree, Ms. Defernez claimed a , dependency e empt ion deduction for TDD on her 2007 Federal income tax return.

In t he notice of defidie'ncy to petitioner, respondent disallowed the claimed dependency eícemption deduc' ion for TDD and the child tax credit.

Discussion Petitioner has the burdën of establishing that responde 'c' s determinations in tihe notice of deficiency are wrong.

See R le 142(a) (1); Welch v. Helverin , :290 U.S. 111, 115 (1933).2 I. Dependency Exemption Ded ction ' , e Section 151(c) allows a taxpayer to deduct an annual "exemption amount, for each i dividual who is a dependent (as defined in section 152) of t e taxpayer for the taxable year '' As pertinent herein, section 152 (a) (1) defines the term "dependent" as a "qualifying child", sec. 152(a) (1), or a "qualifying relative", sec .

52 (a) (2) .

A. Qualifying Child Respondent boncedes tha TDD is petitioner's child.

Th child of a taxpayer is a qualifying child if that child has he , same principal place of abode as the taxpayer for more than ne- half of the taxable year and jmeets an age restriction and se f - support prohibition that are not at issue here.

Sec. 152(c) 2Sec. 7491(a) provides that under certain circumstances he burden of proof with respect to factual matters shifts to respondent. Petitioner neither alleged nor established that t'his section is herein applicable. Regardless, we resolve the ca e on the preponderance of burden of proof, burden of proof moot . 186-189 (2008) .

the evidence, not on an allocation of t e rendering tlIe issue as to which party has t è See Kršudsen v . Commissioner, 131 T . C. 185, Petitioner jadmitted that duriný 2007iTDD didenot reside wïth h m for more than one ha of the years.

A custodiala parente may release his'/her claim to the dependency exempt ion by rsigningua written declaration (asM e provided in the regúlations) sec Q⁵² (e) (2) (A) andathe noncustodial parent smay clajmythe exemption by attaching the declarationato chi s gorg heriFederal income tax return i see .

152 (e) (2) (B) . OPursuant, to its rauthority, the Int'ernal Revenue Service issued Fcrm 8332 tooenable ainoncustódiailsparent ato satisfy the written declai-ation requirement öf sections Ie2(e) (2) Ns Deferneddid :not sign'a Form 8332 or similar declaration statincj that ashey would noteclaim itheusdependency ekemptiòn a déduction fór TDE in 2007.

Indeed, Ms. Defernez clhimed a degndency7exemption deduction fòr TDD fot h'erselfabri hér 2007 Federal income tax return Petitioner traintains that the divorce dearee is súfficient documentatiorr forrhimato claim a dependency exemption deduàtion for TDD.

For the reasons set forth belowg we disagree.

Initially⁴ we' noteI thattpetitioner did not attach thé diiorce adecree to his 20 07 GFederal income stai eturna.M In any cases/the Commissioner requires- that sif a Ita ayër does not use Fordt 8432 the statement used by ithe taxbaye&niust conform to the substance of Fórm 8332. TIn that regard theataxpayer is i-equired to- furnish:

(1) The namèsa oftthehdhildren; (2)-the years3fòr 99 which th'e claims zwere releas d; (3) the signature of Ithe custodial parent; (4) the SoÈialeSecurity number of'ther custodial parent ; (5) the .datëe of the custodial sparent' s siáñáture'; and (6) the name -and «Social Seòunit numbereof fther parent claiming -the exception.

See Miiller v. Còümissioner, 114 T:C., ]Í84·, 190 (2000) , affd. sub nom.. Love oviv.>Co missioner, 293 Fe3d"1208 (10th Cir 2002) .

Thes divorce decree does not meet these requiilements.

Ratheri ït merely 1sets; forth the~circumstancesowherebys petitioner can -claimst-he dependenåy exeAption deduction if he is a current on his child support, payments; importantly,r it does not sp'ecify the ears to which it applie's . Consequently, the sdïvorce 2decree does not qualify as a written declaration2withinathe meaniný of section 152*(e) ( 2) . Seekid /We Etherefore. Iaöld that⁹ ÓD i not petitioner's qualifyiríg child for 2007.

See Trioils . Commissioner, T.C. Memo 2009-96.

B. Quallifyinq RelatsiŠe

Fort the child of a taxpayer to, be a, qualifying relativeE -(1) The taxpayer, must provide ,overrone-helf of thät :child? s support for othe -year; (2) the child must meet certain income restrictions not at issue here; and: (-3)a the child must not be the* qualifying child of another taxpayer during t e year.

Sec.ta152(d) (1) .

As -a + result of bur hölding above T D was thesqualifying child of IMs.

Deferenz and therefore cannot be petitioner' s -qualifying -relative for 2007.

,-In addition; in order for petitio'ner t'o establish that he provide~d more'than-one-half of -TDD's total' supportodurinig 2007, he must establish the total amount sof s'upport :from 'all sources provided to TDD during 2007.

See Archer IV.3 Comm'issioner,

.512, 514-515 (1971).; sec . 1.152--1(a) (2) (i) ,- Income -Tax Reg's .- 5 5 3 "The term - 'support' includes food, shelte'r, cl'othing, medical and dental care, education and the like."

Sec. 1.152- 1(a) (2) (i), Income Tax Regs.

The total amount of suppdrt for each claimed dependent provided by-all sources during the' year at issue must' be' shown' b'y scompelling evidence .7 Blanco v.

Commissioner,' supra'-at 514.

If the amount of total support is not shown and cannot be reasonably 'inferred,from -the compete'nt evidence availableato us,* thën it is Éol:

];iósslible, tö conclude that the ;takpayer fuenished mo e than one-half of the total amount of support. s sId. at 514 515; Stafford v.* dominissionery 46 T.C. 515,6518 (1966)-.3 The parties stipulated that petitioner' niade all equired I child' support pay ents for 2007.

Brit etitioner did nott establish the total amount of TDD' s support from all sources throughout the year.

The statute is specific with respect to the requirements a taxpayer must meet in order to be eligible to claim an individual as adualifying relative., Pètitioneradid not satisfy these reciuidementse. Therefore, upe itioner has not ca ried his burden of establishing that afor 200 TDD is his qualifying relative.

See Horslev ve Commissioner T.C. Memo. 200&a⁴⁷.

C. Conclusion Because petitioner has not established that TDD is either his qualifying, child oi- a qualifying relative for pürposes of section=152, petitionerais not entitled to a dependency exemption deduction for TDD for 2007 II. Child Tax Credit Subject toolimitations ased on adjusted gross income, section 24"(a) provides a cre it with respect to -each q alifying child of the taxpayer Sectaon 24(c) (1) defines the term "qualifying, child"gas a "qualifying-child:of the taxpayer -(as defiried in, sectièr 152(:c)h who has noteattained the age of 17."

As discussed súprÅ pp.

6, TDDI is not petit ioner'.s a qualifying: child as defined n section £52(c) .

Thuss, petitioner is not entitled to the section 24 (a) child tax cred.it with respect t o TDD for 2007 To reflect the foregoing Decision will be entered f or respondent .

4. Petitioner may stillecl ini a dependency 'exem tion deduction for TDD if TDD is edeemed ½o e rhis qualifying relative .
73. "T-.C. 96-3, '967 (1980) ; "Blanco v. Commissioner,' 56 T.C-.