Cheryl J. Miller v. Commissioner

114 T.C. No. 13
UNITED STATES TAX COURT
CHERYL J. MILLER, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
JOHN H. LOVEJOY, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket Nos. 8094-97, 8158-97. Filed March 24, 2000.
Ps, husband (H) and wife (W), separated in 1992
and divorced in 1993. Following a contested divorce
proceeding, the Denver (Colorado) District Court (the
State court) issued Permanent Orders granting W sole
custody of Ps’ two minor children. The Permanent
Orders also provided that H “shall claim both of [the]
children on his tax returns as exemptions.” In
accordance with the Permanent Orders, H claimed the
dependency exemptions for the children on his 1993 and
1994 Federal income tax returns. However, he did not
attach a completed Form 8332, Release of Claim to
Exemption for Child of Divorced or Separated Parents,
signed by W to either of the returns. Instead, H
attached portions of the Permanent Orders to his
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returns as support for the claimed dependency
exemptions. The Permanent Orders were not signed by W
consenting to the release of the dependency exemptions
to H. The Permanent Orders were executed by the State
court judge and were signed by W’s attorney signifying
approval as to form.
Held: The Permanent Orders do not qualify as a
written declaration signed by the custodial parent
confirming that the custodial parent will not claim
the children as dependents for 1993 and 1994. Thus,
attaching the Permanent Orders to H’s tax returns did
not satisfy the requirements of sec. 152(e)(2), I.R.C. and
H is not entitled to claim the dependency exemptions
for his minor children.
William C. Waller, Jr., for petitioner in docket
No. 8094-97.
Thomas G. Hodel, for petitioner in docket No. 8158-97.
Sara J. Barkley, for respondent.
MARVEL, Judge: Respondent determined deficiencies in the
Federal income tax of petitioner Cheryl J. Miller, formerly
Cheryl J. Lovejoy (Ms. Miller), for the taxable years 1993 and
1994 of $8,863 and $2,766, respectively. Respondent also
determined deficiencies in the Federal income tax of petitioner
John H. Lovejoy (Mr. Lovejoy) for the taxable years 1993 and 1994
of $12,018 and $5,905, respectively.
These cases have been consolidated for purposes of trial,
briefing, and opinion because they involve common questions of
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fact and law arising from the separation and divorce of
petitioners.
In a prior opinion in these cases, Miller v. Commissioner,
T.C. Memo. 1999-273, we decided that "unallocated child support
and maintenance" payments made pursuant to a Colorado State court
decree were not deductible by the payor spouse under section 2151
or includable in the income of the payee spouse under section 71.
The only issues remaining for decision2 are:
(1) Whether a State court decree which awarded the
dependency exemptions for petitioners' minor children to the
noncustodial parent but which was not signed by the custodial
parent qualifies as a written declaration signed by the custodial
parent that she will not claim the children as dependents as
required by section 152(e)(2); and
(2) if issue (1) is resolved in favor of the noncustodial
parent, whether the custodial parent regained the right to claim
the dependency exemptions because the noncustodial parent failed
to pay all of the child support required by the State court
decree.
1
All section references are to the Internal Revenue Code as
in effect for the years in issue, and all Rule references are to
the Tax Court Rules of Practice and Procedure.
2
The only other issues raised by the notices of deficiency
are computational.
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FINDINGS OF FACT
Some of the facts have been stipulated and are so found.
The parties' stipulations of fact are incorporated herein by
reference.
Petitioners Cheryl J. Miller and John H. Lovejoy resided in
Colorado during the years in issue and when the petitions in
these consolidated cases were filed.
Petitioners were married on August 30, 1970. They had two
children during their marriage--Krista Holly Lovejoy, born on
January 8, 1977, and Dean Ross Lovejoy, born on May 10, 1980
(collectively, the children).
In May 1992, petitioners separated. Ms. Miller remained in
the family home, and Mr. Lovejoy moved into a separate residence.
Mr. Lovejoy and Ms. Miller maintained separate residences
throughout 1993 and 1994 and were not members of the same
household at any time during those years.
Shortly after petitioners separated, Ms. Miller filed a
"Petition for Dissolution of Marriage" seeking, inter alia, a
divorce, temporary and permanent maintenance, and child support
(the divorce case). On August 13, 1992, nunc pro tunc July 27,
1992, the Denver (Colorado) District Court (the State court)
signed Temporary Orders3 in the divorce case that incorporated
3
"Temporary Orders" may provide for temporary payment of
(continued...)
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stipulations agreed to by the parties. The Temporary Orders
conferred joint custody of the children on Ms. Miller and Mr.
Lovejoy but designated Ms. Miller "the primary residential
custodian for the children". The Temporary Orders were silent
regarding which party was authorized to claim the dependency
exemptions for the children.
Following several days of testimony in a contested divorce
proceeding, the State court issued Permanent Orders on January
24, 1994, nunc pro tunc November 12, 1993, granting Ms. Miller
sole custody of the children. The Permanent Orders also provided
that Mr. Lovejoy "shall claim both of [the] children on his tax
returns as exemptions". The Permanent Orders were not signed by
Ms. Miller. However, they were executed by the State court judge
and were also signed by the attorneys for Ms. Miller and Mr.
Lovejoy under a caption that read “APPROVED AS TO FORM”.
In accordance with the Permanent Orders, Mr. Lovejoy claimed
dependency exemptions for both children on his 1993 and 1994
Federal income tax returns. However, he did not attach a
completed Form 8332 signed by Ms. Miller to either of the
returns. Instead, Mr. Lovejoy attached some portion of the
3
(...continued)
debts, use of property, custody, maintenance, child support, or
attorney's fees during the pendency of divorce or separation
proceedings. Colo. Rev. Stat. sec. 14-10-108 (1998).
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Permanent Orders to his 1993 and 1994 Federal income tax returns
to document his entitlement to the dependency exemptions.
Ms. Miller did not claim the dependency exemptions for the
children on her 1993 and 1994 Federal income tax returns or on an
amended return that she filed for 1993; however, Ms. Miller was
granted leave to amend her petition in this case prior to trial
to assert that she was entitled to claim the dependency
exemptions.4 Ms. Miller based her claim to the dependency
exemptions on a section of the Colorado Uniform Dissolution of
Marriage Act (UDMA), which provides: “A parent shall not be
entitled to claim a child as a dependent if he or she has not
paid all court-ordered child support for that year or if claiming
the child as a dependent would not result in any tax benefit.”
Colo. Rev. Stat. sec. 14-10-115 (14.5) (1998). Ms. Miller
alleged that Mr. Lovejoy had failed to pay all court-ordered
child support for 1993 and 1994 and that this failure entitled
her to the dependency exemptions under Colorado law.
At the conclusion of the trial, the parties were asked to
brief the issue of whether the Permanent Orders qualified as a
declaration signed by the custodial parent releasing the
4
Respondent also was granted leave to amend his answer in
Mr. Lovejoy's case to assert protectively that Mr. Lovejoy was
not entitled to claim the dependency exemptions for the children
if Ms. Miller's claim to the dependency exemptions was upheld.
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dependency exemptions to the noncustodial parent under section
152(e)(2).
OPINION
A taxpayer may claim a dependency exemption for a child as
long as the child meets the statutory definition of "dependent".
Secs. 151(c)(1), 152(a)(1). Ordinarily, a taxpayer may claim a
child as a dependent for a particular calendar year only if the
taxpayer provides over half of the child's support during that
calendar year. See sec. 152(a). However, special rules
determine which parent may claim a minor child as a dependent
where the parents are divorced or separated. See sec. 152(e).
Prior to 1985, the definition of dependent led to
substantial controversy in cases involving divorced or separated
taxpayers because determining which parent provided over one-half
of a child's support presented difficult issues of proof and
substantiation. See H. Rept. 98-432 (Part 2), at 1498 (1984).
In 1984, Congress amended section 152(e) to simplify the rules
for determining which parent properly may claim the dependency
exemption(s) for Federal income tax purposes. See Deficit
Reduction Act of 1984, Pub. L. 98-369, sec. 423(a), 98 Stat. 799.
The pertinent parts of section 152(e) as amended provide:
SEC. 152(e). Support Test in Case of Child of
Divorced Parents, Etc.--
(1) Custodial parent gets exemption.–-Except
as otherwise provided in this subsection, if–-
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(A) a child (as defined in section
151(c)(3)) receives over half of his support
during the calendar year from his parents–-
(i) who are divorced or legally
separated under a decree of divorce or
separate maintenance,
(ii) who are separated under a
written separation agreement, or
(iii) who live apart at all times
during the last 6 months of the calendar
year, and
(B) such child is in the custody of one
or both of his parents for more than one-half
of the calendar year,
such child shall be treated, for purposes of subsection
(a), as receiving over half of his support during the
calendar year from the parent having custody for a
greater portion of the calendar year (hereinafter in
this subsection referred to as the “custodial parent”).
(2) Exception where custodial parent releases
claim to exemption for the year.-–A child of
parents described in paragraph (1) shall be
treated as having received over half of his
support during a calendar year from the
noncustodial parent if-–
(A) the custodial parent signs a written
declaration (in such manner and form as the
Secretary may by regulations prescribe) that
such custodial parent will not claim such
child as a dependent for any taxable year
beginning in such calendar year, and
(B) the noncustodial parent attaches
such written declaration to the noncustodial
parent’s return for the taxable year
beginning during such calendar year.
For purposes of this subsection, the term “noncustodial
parent” means the parent who is not the custodial
parent.
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Under section 152(e) as amended, the custodial parent5 is
entitled to claim the dependency exemption with respect to his or
her child unless one of three exceptions applies. See sec.
152(e); sec. 1.152-4T(a), Q&A-2, Temporary Income Tax Regs., 49
Fed. Reg. 34459 (Aug. 31, 1984). Only one of the exceptions is
at issue here--the custodial parent's release of the claim to
exemption pursuant to section 152(e)(2).
Although section 152(e) was amended effective for years
beginning after December 31, 1984, the only regulations
promulgated with respect to section 152(e) since its amendment in
1984 are temporary regulations.6 Section 1.152-4T(a), Q&A-3,
Temporary Income Tax Regs., supra, provides that a noncustodial
parent may claim the exemption for a dependent child “only if 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.”
5
In this opinion, we refer to the parent having physical
custody for the greater part of the year as the custodial parent
and to the parent who is not the custodial parent as the
noncustodial parent. See sec. 152(e)(flush language).
6
Temporary regulations are entitled to the same weight as
final regulations. See Peterson Marital Trust v. Commissioner,
102 T.C. 790, 797 (1994), affd. 78 F.3d 795 (2d Cir. 1996); Truck
& Equip. Corp. v. Commissioner, 98 T.C. 141, 149 (1992).
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The declaration required under section 152(e)(2) must be made
either on a completed Form 8332 or on a statement conforming to
the substance of Form 8332. See sec. 1.152-4T(a), Q&A-3,
Temporary Income Tax Regs., supra. The exemption may be released
for a single year, for a number of specified years, or for all
future years "as specified in the declaration." Sec. 1.152-
4T(a), Q&A-4, Temporary Income Tax Regs., supra.
In this case, Mr. Lovejoy, the noncustodial parent, claimed
the dependency exemptions for his minor children for each of the
years at issue pursuant to a provision in the Permanent Orders
which summarily stated that Mr. Lovejoy "shall claim both of
[his] children on his tax returns as exemptions." At trial, Mr.
Lovejoy testified that, although he did not ask Ms. Miller, the
custodial parent, to complete or sign Form 8332, he did attach a
copy of portions of the Permanent Orders to each of his returns
for 1993 and 1994 prior to filing the returns.7
7
The copies of Mr. Lovejoy's 1993 and 1994 returns, which
were admitted into evidence as exhibits to the stipulation of
facts, did not include any part of the Permanent Orders as
attachments. Mr. Lovejoy explained this omission by pointing out
that the stipulations were negotiated and agreed upon before any
issue regarding the dependency exemptions was raised and that
someone in the Service Center could have removed the attachments.
In her opening statement, respondent's counsel acknowledged this
was possible. We also note that the returns in evidence were
incomplete in other ways. For example, the 1994 return was filed
electronically. Although what purports to be the 1994 return in
the record summarizes the information included on the
electronically filed return, there is no signature page. In
(continued...)
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The issue regarding the dependency exemptions was raised by
Ms. Miller in a motion for leave to amend her petition shortly
before trial. Ms. Miller has the burden of proof regarding her
entitlement to the dependency exemptions in her case. See Rule
142(a). In Mr. Lovejoy's case, respondent moved to amend his
answer to assert protectively that if Ms. Miller was entitled to
claim the dependency exemptions, Mr. Lovejoy was not. Therefore,
respondent bears the burden of proving that Mr. Lovejoy is not
entitled to the dependency exemptions. See id.
We accept Mr. Lovejoy's testimony that he attached a copy of
the relevant portions of the Permanent Orders to his income tax
returns for the years at issue. We still must decide, however,
whether attaching the Permanent Orders to Mr. Lovejoy's tax
returns satisfied the requirements of section 152(e)(2) and
section 1.152-4T(a), Q&A-3, Temporary Income Tax Regs., supra.
The answer to the question depends upon whether the Permanent
Orders qualify as a "written declaration" signed by Ms. Miller
confirming that she will not claim the dependency exemptions with
7
(...continued)
order to file electronically, a taxpayer must sign and file Form
8453, U.S. Individual Income Tax Declaration for Electronic
Filing, and transmit it with other paper documents that cannot be
filed electronically. Form 8453 must be received by the Internal
Revenue Service (IRS) before any electronically filed return is
complete. See Rev. Proc. 94-11, 1994-1 C.B. 557, 558. Form 8453
for 1994 and the attachments to it were not made a part of the
record at trial.
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respect to her children for the years at issue. See sec.
152(e)(2); sec. 1.152-4T(a), Q&A-3, Temporary Income Tax Regs.,
supra.
The Written Declaration Requirement-–Form 8332
Pursuant to the authority conferred upon it by section
152(e)(2) as amended, the Internal Revenue Service (IRS) issued
Form 8332 to enable a noncustodial parent to satisfy the written
declaration requirement of section 152(e)(2). Form 8332 requires
a taxpayer to furnish (1) the names of the children for which
exemption claims were released, (2) the years for which the
claims were released, (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
parent claiming the exemption. See Neal v. Commissioner, T.C.
Memo. 1999-97; Paulson v. Commissioner, T.C. Memo. 1996-560;
White v. Commissioner, T.C. Memo. 1996-438.
Satisfying the signature requirement is critical to the
successful release of the dependency exemption within the meaning
of section 152(e)(2). See Neal v. Commissioner, supra; Paulson
v. Commissioner, supra; White v. Commissioner, supra. Section
152(e)(2) expressly provides that the noncustodial parent may
claim the dependency exemption for a child only if "the custodial
parent signs a written declaration”, sec. 152(e)(2)(A), and the
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declaration is attached to the return of the noncustodial parent,
see sec. 152(e)(2)(B). Form 8332 incorporates the statutory
requirement; Form 8332 is valid only when signed by the custodial
parent. By signing the document, the custodial parent
affirmatively consents to the release of the dependency exemption
to the noncustodial parent.
In this case, Mr. Lovejoy did not attach Form 8332 to his
Federal income tax returns for 1993 or 1994. In fact, he did not
even ask Ms. Miller to sign Form 8332. Instead, he attached
portions of the Permanent Orders to his returns. As a result,
unless the Permanent Orders qualify as a statement conforming to
the substance of Form 8332, see sec. 1.152-4T(a), Q&A-3,
Temporary Income Tax Regs., 49 Fed. Reg. 34459 (Aug. 31, 1984),
Mr. Lovejoy has not satisfied the requirements of either section
152(e)(2) or the applicable regulation. We turn, therefore, to a
review of the Permanent Orders.
The Written Declaration Requirement: Are the Permanent Orders a
Statement Conforming to the Substance of Form 8332?
Comparing the Permanent Orders with Form 8332 reveals
several differences between the two documents. Form 8332
requires a taxpayer, among other things, to furnish the years for
which the claims were released, the signature of the custodial
parent, the date of that signature, and the Social Security
number of the custodial parent. By contrast, the Permanent
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Orders do not list the years for which the dependency exemptions
were released, and they do not bear either the signature of the
custodial parent, Ms. Miller, or her Social Security number.
In order for a document to qualify as a statement conforming
to the substance of Form 8332, it must contain substantially the
same information required by Form 8332. In particular, the
document must satisfy the signature requirement of section
152(e)(2). The signature of the custodial parent is critical to
the successful implementation of Congress’ plan to eliminate
support-based disputes regarding dependency exemptions and to
simplify the rules regarding when a noncustodial parent may claim
the dependency exemptions for his or her children.
It is beyond debate that Ms. Miller did not sign the
Permanent Orders. The Permanent Orders were executed by the
State court judge and also were signed by petitioners’ counsel
signifying their approval as to form. Section 152(e)(2)
requires the signature of the custodial parent. We must examine,
therefore, whether either the execution of the Permanent Orders
by the State court judge or the signing of the Permanent Orders
by Ms. Miller’s counsel as to form satisfies the signature
requirement of section 152(e)(2).
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Is the Signature of the Custodial Parent’s Attorney as to Form
Sufficient To Satisfy the Signature Requirement of Sec.
152(e)(2)?
The Permanent Orders were issued by the State court judge
following a contested divorce hearing held over several days.
The Permanent Orders were signed by petitioners’ counsel as to
form only. Although neither petitioner discussed whether the
signature of the custodial parent’s counsel approving the form of
the Permanent Orders only is sufficient to satisfy the signature
requirement of section 152(e)(2), we address the issue sua
sponte.
Ms. Miller’s attorney signed the Permanent Orders subject to
a qualification which indicated that he was approving only the
form of the Permanent Orders. The signature of counsel approving
the form of a document ordinarily does not signify general
consent to, and approval of, the substance of the document. See
generally Albright v. District Court, 375 P.2d 685 (Colo. 1962)
(Local rule required counsel to sign a pretrial order signifying
his approval as to form and content. Counsel signed the pretrial
order, approving it as to form only, in order to preserve all
objections and exceptions made to the rulings of the court. The
court held that approval of the content of the order pursuant to
the local rules is an approval only of the recital of what
transpired at the pretrial conference. Under the facts of the
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case, such approval does not operate as a waiver of counsel’s
objections to the terms of the order or the application of
substantive law in the order). We believe that the signature of
Ms. Miller’s attorney in this case merely signified that Ms.
Miller’s attorney had reviewed and approved the form of the
Permanent Orders while preserving Ms. Miller’s right to appeal
from the rulings reflected in the Permanent Orders. See id.
The signature requirement of section 152(e)(2) demands more
than simply an acknowledgment regarding form; the signature of
the custodial parent must confirm the custodial parent’s
intention to release the dependency exemption to the noncustodial
parent and signify her agreement not to claim the dependency
exemption herself. The signature of Ms. Miller’s attorney
approving the form of the Permanent Orders does not satisfy the
mandate of section 152(e)(2).8
Is the Signature of the State Court Judge on the Permanent Orders
Sufficient To Satisfy the Signature Requirement of Sec.
152(e)(2)?
Mr. Lovejoy’s principal argument is that the Permanent
Orders are sufficient to establish his entitlement to the
dependency exemptions because the State court gave him the right
to claim them on his tax returns. Ms. Miller and respondent
8
Our conclusion is limited to the facts of this case. We do
not decide whether there are any circumstances under which the
signature of a custodial parent’s attorney can ever satisfy the
signature requirement of sec. 152(e)(2).
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disagree, contending that, in order for a document to qualify
under section 152(e)(2), the custodial parent must sign it.
Although the Permanent Orders gave Mr. Lovejoy the right to claim
the dependency exemptions, Mr. Lovejoy still had to satisfy the
requirements of section 152(e)(2). According to Ms. Miller and
respondent, Mr. Lovejoy failed to do so. We agree.
This Court consistently has held that section 152(e)(2)
clearly and unambiguously requires the custodial parent to sign a
written declaration releasing the dependency exemption for his or
her child to the noncustodial parent. See Neal v. Commissioner,
T.C. Memo. 1999-97; Paulson v. Commissioner, T.C. Memo. 1996-560;
White v. Commissioner, T.C. Memo. 1996-438; Peck v. Commissioner,
T.C. Memo. 1996-33. On several occasions we have rejected well-
intentioned but flawed attempts to comply with section 152(e)(2).
See Neal v. Commissioner, supra; Paulson v. Commissioner, supra;
White v. Commissioner, supra; Peck v. Commissioner, supra. Even
where a State court judge has entered an order “granting” the
noncustodial parent the right to claim the Federal dependency
exemption for his child and the noncustodial parent attached a
copy of the order to his tax return, we have rejected the
noncustodial parent’s claim to the dependency exemption where the
custodial parent failed to sign a written declaration as required
by section 152(e). See Neal v. Commissioner, supra.
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In Neal, the taxpayer, a noncustodial parent who had claimed
dependency exemptions for all three of his children on his
Federal income tax returns for the years at issue, supported his
claim to the exemptions by attaching Forms 8332 (one for each
child) and copies of the Decree of Dissolution and a State court
order amending the decree. The decree as amended by the related
order granted him the right to claim the dependency exemption for
one of his children but was silent with respect to the other two
children. The Forms 8332 were not signed by the custodial
parent. He made no effort to obtain the signature of the
custodial parent on the Forms 8332 or on any other document that
might qualify as their substantive equivalent. The taxpayer in
Neal relied on publications of the IRS which, he claimed,
required only that the noncustodial parent attach to his returns
a copy of the decree or order granting him the right to claim the
dependency exemption for his child. The publications were not
introduced into evidence. Based on certain testimony in the
case, we assumed without deciding that the IRS’s publications
required the custodial parent to sign the pertinent decree or
agreement. We concluded that, since neither the Forms 8332 nor
the decree and order were signed by the custodial parent, the
taxpayer did not satisfy the requirements of section 152(e)(2).
Unlike the taxpayer in Neal, Mr. Lovejoy does not rely on
any IRS publication to support his claim to the dependency
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exemptions. Our review of the relevant IRS publications reveals
that the guidance given to taxpayers for the years at issue is
less than clear and may even be misleading regarding the effect
of a State court decree on the ability of the noncustodial parent
to claim the dependency exemption for his or her child.9
9
The IRS issued administrative guidance in the form of
instructions to taxpayers to assist them in complying with the
requirements of sec. 152(e)(2) for each of the years at issue.
See Publications 501, Exemptions, Standard Deduction, and Filing
Information (for use in preparing 1993 returns and 1994 returns),
and Publications 504, Divorced or Separated Individuals (for use
in preparing 1993 returns and 1994 returns). Each of these
publications states that the noncustodial parent is treated as
the parent who gave more than half the child’s support (and
therefore is entitled to claim the dependency exemption for the
child) if “The custodial parent signs a statement agreeing not to
claim the child’s exemption, and the noncustodial parent attaches
this statement to his or her return”. In another section of the
publications, the IRS addresses how a noncustodial parent who has
been awarded the right to claim the dependency exemption for his
or her child in a divorce decree or separation agreement may
demonstrate his or her entitlement to the child’s dependency
exemption. For example, in Publication 501, Exemptions, Standard
Deduction, and Filing Information (for use in preparing 1993
returns), the IRS states as follows:
Noncustodial parent. The noncustodial parent will be
treated as providing more than half of the child’s
support if:
* * * * * * *
2) A decree or agreement went into effect after 1984
and it unconditionally states that the
noncustodial parent can claim the child as a
dependent * * *
See also Publication 501, Exemptions, Standard Deduction, and
Filing Information (for use in preparing 1994 returns), and
Publication 504, Divorced or Separated Individuals, (for use in
(continued...)
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Unfortunately, the fact that an IRS publication is unclear or
inaccurate does not help the taxpayer. Well-established
precedent confirms that taxpayers rely on such publications at
their peril. Administrative guidance contained in IRS
publications is not binding on the Government, nor can it change
the plain meaning of tax statutes. See Johnson v. Commissioner,
620 F.2d 153 (7th Cir. 1980), affg. T.C. Memo. 1978-426 (Tax
Information on Individual Retirement Savings Programs); Carpenter
v. United States, 495 F.2d 175 (5th Cir. 1974) (Tax Guide for
9
(...continued)
preparing 1993 returns). None of these publications states how
the signature requirement referenced earlier in the publications
applies to the decree or agreement. In contrast, in Publication
504, Divorced or Separated Individuals, (for use in preparing
1994 returns) the IRS revised its guidance to taxpayers to
clarify that the decree or agreement on which the noncustodial
parent relies must contain the signature of the custodial parent:
Noncustodial Parent
Similar statement. If your divorce decree or
separation agreement made after 1984 unconditionally
states that you can claim the child as your dependent,
you can attach to your return copies of the following
pages from the decree or agreement instead of Form
8332:
1) The cover page (write the other parent’s social
security number on this page),
2) The page that unconditionally states you can claim
the child as your dependent, and
3) The signature page with the other parent’s
signature and the date of the agreement.
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U.S. Citizens Abroad); Adler v. Commissioner, 330 F.2d 91, 93
(9th Cir. 1964), affg. T.C. Memo. 1963-196 (Your Federal Income
Tax for Individuals). The authoritative sources of Federal tax
law are the statutes, regulations, and judicial decisions; they
do not include informal IRS publications. See Zimmerman v.
Commissioner, 71 T.C. 367, 371 (1978), affd. 614 F.2d 1294 (2d
Cir. l979).
Section 152(e)(2) clearly requires that the custodial parent
release the dependency exemption for a child by signing a written
declaration to that effect in order for the noncustodial parent
to claim the child’s dependency exemption. The control over a
child’s dependency exemption conferred on the custodial parent by
section 152(e)(2) was intended by Congress to simplify the
process of determining who is entitled to claim dependency
exemptions for children of a marriage. See H. Rept. 98-432 (Part
2), at 1498 (1984). To make section 152(e)(2) work as intended,
that control must be preserved by insisting on adherence to the
requirements of section 152(e)(2). Simply attaching a State
court order that is not signed by the custodial parent to the
return of the noncustodial parent does not satisfy the express
statutory requirements of section 152(e)(2)(A). Although the
Permanent Orders granted Mr. Lovejoy the right to claim the
dependency exemptions for his children, a State court cannot
determine issues of Federal tax law. See Kenfield v. United
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States, 783 F.2d 966 (10th Cir. 1986)); White v. Commissioner,
T.C. Memo. 1996-438 (citing with approval Commissioner v. Tower,
327 U.S. 280 (1946)).
Ms. Miller’s contention that she was entitled to claim the
dependency exemptions for her two children originally was based
on a section of the UDMA10 which provides: "A parent shall not be
entitled to claim a child as a dependent if he or she has not
paid all court-ordered child support for that year". Colo. Rev.
Stat. sec. 14-10-115 (14.5) (1998). Ms. Miller contended that
Mr. Lovejoy did not comply with his child support obligations,
and, therefore, under the operative provisions of the UDMA, he
forfeited his right to the dependency exemptions arguably awarded
to him by the Permanent Orders. If we accepted Ms. Miller’s
statement of the issue, we would find ourselves in the middle of
a child support fight similar to that which Congress intended to
remove from the Federal courts when it amended section 152(e) in
1984. Instead, we have framed the issue as it should be framed:
Did the noncustodial parent do what was necessary to satisfy
section 152(e)(2)? Because we conclude that he has not done so
in this case, we need not decide the child support dispute
presented to us by Ms. Miller.11
10
Colo. Rev. Stat. secs. 14-10-101 through 14-10-133 (1998).
11
It is questionable whether State law can impose the
(continued...)
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Since Mr. Lovejoy did not satisfy the requirements of
section 152(e)(2), he is not entitled to claim the dependency
exemptions with respect to his children for either 1993 or 1994.12
As the custodial parent, Ms. Miller is entitled to the exemptions
under Federal law.
We have carefully considered all remaining arguments made by
the parties for a result contrary to that expressed herein, and,
to the extent not discussed above, find them to be irrelevant or
without merit.
11
(...continued)
additional requirement that the noncustodial parent timely pay
his child support obligations in order to claim the dependency
exemption for a minor child under sec. 152(e)(2). See U.S.
Const. art. VI, sec. 2; Kenfield v. United States, 783 F.2d 966
(10th Cir. 1986); White v. Commissioner, T.C. Memo. 1996-438
(citing Commissioner v. Tower, 327 U.S. 280 (1946)); Nieto v.
Commissioner, T.C. Memo. 1992-296; see also Bittker & Lokken,
Federal Taxation of Income, Estates and Gifts, par. 4.1.1, at 4-6
and 4-7 (3d ed. 1999).
12
However, Mr. Lovejoy may have a remedy in State court.
See Colo. Rev. Stat. sec. 14-10-115 (14.5) (1998) which provides,
in part, that “A parent shall not be entitled to claim a child as
a dependent * * * if claiming the child as a dependent would not
result in any tax benefit.”
- 24 -
To reflect the foregoing, the prior opinion in these cases,
and the concessions by the parties,
Decisions will be entered
under Rule 155.