DocketNumber: No. 20992-03S
Citation Numbers: 2005 T.C. Summary Opinion 89, 2005 Tax Ct. Summary LEXIS 105
Judges: \"Powell, Carleton D.\"
Filed Date: 7/14/2005
Status: Non-Precedential
Modified Date: 11/20/2020
*105 PURSUANT TO INTERNAL REVENUE CODE SECTION 7463(b), THIS OPINION MAY NOT BE TREATED AS PRECEDENT FOR ANY OTHER CASE.
POWELL, Special Trial Judge: This case was heard pursuant to the provisions of
"Petitioner" refers only to Walter D. Mace. Respondent determined a deficiency of $ 1,397 in petitioners' 2001 Federal income tax. The issue is whether petitioners are entitled to a
*106 Background
Petitioner and Ella Jo Willis (custodial parent) are the biological parents of a minor child who was born in 1991. Petitioner and the custodial parent have never been married to each other, and they lived apart at all times during 2001. By order of the Hamilton County Juvenile Court (support order) dated May 25, 1999, petitioner was ordered to pay the custodial parent child support.
The support order states that "every year" petitioner is entitled to claim the child as a dependent for tax purposes if the child support payments for the year in which the child will be claimed as a dependent are current in full. The support order also provides that the custodial parent "must take whatever action necessary to enable this claim." Petitioner was current in full with his child support obligations for the year at issue.
Petitioners claimed a dependency exemption deduction and a child tax credit for petitioner's minor child on their jointly filed Form 1040, U.S. Individual Income Tax Return, for the taxable year 2001. 2 Petitioners did not attach any statement from the custodial parent or an Internal Revenue Service form regarding petitioner's entitlement to the dependency exemption*107 deduction to their return. Respondent notified petitioners that their 2001 return was under examination due to the claimed dependency exemption deduction and child tax credit. The custodial parent also claimed the child as a dependent when she filed her return for the 2001 taxable year.
Petitioner filed a motion in Hamilton County Juvenile Court to have the custodial parent found in contempt of the State court support order entitling petitioner to the dependency exemption deduction, and that she be ordered to pay petitioner the money due resulting from her actions. On May 11, 2004, the State court did not find the custodial parent to be in contempt, but ordered her to file an amended return and not claim the child as a dependent. At the time of trial, it was not known whether the custodial parent had complied with the May 11, 2004, order and in fact had filed an amended return.
Discussion 3
Petitioner is not the custodial parent and is not entitled to the dependency exemption deduction under (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.
The written declaration may be made on a form to be provided by the Service for this purpose. * * *
Pursuant to the regulations, the Internal Revenue Service issued Form 8332, *110 Release of Claim to Exemption for Child of Divorced or Separated Parents, as a way to satisfy the written declaration requirement of
*111 Petitioners did not attach a written declaration, Internal Revenue Service form, or other statement signed by the custodial parent to their return. See
Although the support order provides that petitioner is entitled to the dependency exemption deduction, it cannot by its own terms determine issues of Federal tax law.
B. Child Tax Credit
Reviewed and adopted as the report of the Small Tax Case Division.
Decision will be entered for respondent.
1. Unless otherwise indicated, subsequent section references are to the Internal Revenue Code in effect for the year in issue.↩
2. The record does not show when petitioners were married.↩
3. We decide the issue in this case without regard to the burden of proof. See
4. Temporary regulations are entitled to the same weight as final regulations. See
5. Petitioner Pauleana L. Mace testified that petitioners were told by the Internal Revenue Service that as a noncustodial parent who was never married to the custodial parent petitioner could not use Form 8332, but instead needed a Form 2120, Multiple Support Declaration. Form 2120 is used for the claiming of dependency exemptions where multiple taxpayers support a dependent and where the taxpayer contributed over 10 percent of the support of the claimed dependent.
In light of this Court's holding in
Allen F. Kenfield v. United States , 783 F.2d 966 ( 1986 )
E. Norman Peterson Marital Trust, Chemical Bank, Trustee v. ... , 78 F.3d 795 ( 1996 )
Commissioner v. Tower , 66 S. Ct. 532 ( 1946 )
Miller v. Commissioner , 114 T.C. 184 ( 2000 )
King v. Comm'r , 121 T.C. 245 ( 2003 )
Peterson Marital Trust v. Commissioner , 102 T.C. 790 ( 1994 )