Paul Edward Hendrickson & Cynthia Pusateri-Hendrickson, Petitioners

CLC T .C . Summary Opinion 2010-4 5

UNITED STATES TAX COUR T

PAUL EDWARD HENDRICKSON AND CYNTHIA PUSATERI-HENDRICKSON, Petitioners v . COMMISSIONER OF INTERNAL REVENUE, Responden t 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 fo r SERVED Apr 14 2010 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 .

3 - 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 .

I .

Burden of Proo f Discussio n Generally, the Commissioner's determinations are presumed correct, and the taxpayer bears the burden of proving that those determinations are erroneous .' Rule 142(a) ; see INDOPCO, Inc . v .

Commissioner , 503 U .S . 79, 84 (1992) ; Welch v . Helvering , 290 U .S . 111, 115 (1933) .

II .

Dependency Exemption Deduction s Section 151(c), in pertinent part, allows a taxpayer to claim as a de.duction .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 .

, '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 .

4 - 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 th e 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 .

Mille r v . Commissioner , 114 T .C . 184, 190 -191 (2000) (citing sec . 1 .152- 2The 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 .

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 , 293 F .3d 1208 (10th Cit . 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 Credi t 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 6 - 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 entere d for respondent .