T.C. Memo. 2011-199

UNITED STATES TAX COURT

JASON E. PHILLIPS, Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 3108-10. Filed August 16, 2011.

Jason E. Phillips, pro se.

Brett Chmielewski, Eric R. Skinner, and Louis F. Meizlish

(student), for respondent.

MEMORANDUM FINDINGS OF FACT AND OPINION

CHIECHI, Judge: Respondent determined a deficiency in

petitioner’s Federal income tax (tax) for his taxable year 2007

of $3,007.
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The issues for decision for petitioner’s taxable year 2007

are:

(1) Is petitioner entitled under section 151(a)1 to dependency exemption deductions for his two children, EP and RP? We

hold that he is not.

(2) Is petitioner entitled to the child tax credit under

section 24(a) with respect to EP and RP? We hold that he is not.

(3) Is petitioner entitled to the additional child tax

credit under section 24(d) with respect to EP and RP? We hold

that he is not.

FINDINGS OF FACT

Some of the facts have been stipulated and are so found.

Petitioner resided in Michigan at the time he filed the

petition. 

At a time not disclosed by the record, petitioner married

Lindsay M. Schouw (Ms. Schouw). They have two children, EP and

RP. (We shall sometimes refer collectively to EP and RP as the

children.) 

On June 29, 2005, petitioner and Ms. Schouw divorced. 

Pursuant to the judgment of divorce (divorce judgment) that the

Family Division of the Circuit Court for the County of Clinton

(Clinton Circuit Court) entered, petitioner and Ms. Schouw were

1All section references are to the Internal Revenue Code in

effect for the year at issue. All Rule references are to the Tax

Court Rules of Practice and Procedure.
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awarded joint legal custody of EP and RP. Ms. Schouw was awarded

“physical custody” of them, and petitioner was entitled to

“reasonable and liberal parenting time”. The divorce judgment

also provided in pertinent part:

SUPPORT

IT IS FURTHER ORDERED AND ADJUDGED that Defendant,

Jason Phillips [petitioner], shall pay to the State of

Michigan Disbursement Unit for remittance to Plaintiff

[Ms. Schouw] for the support of the minor children [EP

and RP], monthly support as follows which includes

$22.00 monthly child care costs and $36.00 monthly for

ordinary health care when there are two [minor] children; and $22.00 per month child care costs and $18.00

per month ordinary health care when there is one [minor] child:

$726.00 per month for two [minor] children

$452.00 per month when one [minor] child remains

On November 29, 2006, the Clinton Circuit Court entered an

order regarding parenting time (parenting-time order), the terms

of which petitioner and Ms. Schouw had previously stipulated. 

That order provided that petitioner was to “continue to have

reasonable and liberal parenting time” with EP and RP and that

the “Parties [petitioner and Ms. Schouw] will change the alternate weekend schedule after the start of 2007, and the change

will take place by father having two weekends in a row, and the

parties alternating weekends thereafter.” The parenting-time

order did not modify the provision in the divorce judgment with

respect to support. 
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As of the end of 2007, both EP and RP were under the age of

19, and neither of them provided over one-half of his own support

for that year. Each of EP and RP spent more than one-half of the

nights during 2007 with Ms. Schouw and less than one-half of

those nights with petitioner.2

Ms. Schouw did not at any time waive her right to claim

dependency exemption deductions for EP and RP for her taxable

year 2007. 

Petitioner timely filed Form 1040, U.S. Individual Income

Tax Return, for his taxable year 2007 (2007 return). In that

return, petitioner claimed with respect to his children, EP and

RP, (1) dependency exemption deductions, (2) the child tax

credit, and (3) the additional child tax credit. Petitioner did

not attach to his 2007 return a written declaration that Ms.

Schouw signed in which she waived her right to claim dependency

exemption deductions for EP and RP. 

Respondent issued to petitioner a notice of deficiency

(notice) for his taxable year 2007. In that notice, respondent

determined, inter alia, that petitioner is not entitled to

(1) dependency exemption deductions, (2) the child tax credit,

2Petitioner and Ms. Schouw prepared separate summary documents setting forth their respective views regarding the nights

during 2007 which EP and RP spent with each of them. According

to petitioner, EP and RP spent 180 nights with him and 185 nights

with Ms. Schouw during 2007. According to Ms. Schouw, EP and RP

spent 177 nights with petitioner and 188 nights with her during

2007. 
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and (3) the additional child tax credit that he claimed with

respect to his children, EP and RP.

OPINION

Petitioner has the burden of establishing that the determinations in the notice are wrong.3 See Rule 142(a); Welch v.

Helvering, 290 U.S. 111, 115 (1933).

Dependency Exemption Deductions

Section 151(a) provides that “the exemptions provided by

this section shall be allowed as deductions” to a taxpayer. 

Section 151(c) provides an exemption for each dependent of the

taxpayer, as defined in section 152.

Section 152(a) defines the term “dependent” to mean either a

qualifying child or a qualifying relative.

Section 152(c) defines the term “qualifying child” as an

individual who satisfies (1) the relationship requirement in

section 152(c)(1)(A), (2) the principal-place-of-abode requirement in section 152(c)(1)(B), (3) the age requirement in section

152(c)(1)(C), and (4) the support requirement in section

152(c)(1)(D).

3In his pretrial memorandum, petitioner indicated under the

heading “BURDEN OF PROOF”: “Jason E. Phillips [petitioner] will

provide Documentation to support the number of overnights and the

accuracy of the dates on which the over nights took place at

Jason E. Phillips’ residence in 2007.” Petitioner thus acknowledged in his pretrial memorandum that he has the burden of proof

in this case.
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As pertinent here, an individual satisfies the relationship

requirement if that individual is a child of the taxpayer. Sec.

152(c)(2)(A). As pertinent here, an individual satisfies the age

requirement if that individual is under age 19 as of the close of

the calendar year in which the taxpayer’s taxable year begins. 

Sec. 152(c)(3)(A)(i). An individual satisfies the principalplace-of-abode requirement if that individual “has the same

principal place of abode as the taxpayer for more than one-half

of * * * [the taxpayer’s] taxable year”. Sec. 152(c)(1)(B).

The parties agree that each of EP and RP satisfies the

relationship requirement in section 152(c)(1)(A), the age requirement in section 152(c)(1)(C), and the support requirement in

section 152(c)(1)(D). The parties also agree that each of the

children spent more than one-half of the nights during 2007 with

Ms. Schouw and less than one-half of those nights with petitioner.4 As a result, the parties agree that each of EP and RP

does not satisfy the principal-place-of-abode requirement in

section 152(c)(1)(B). Nevertheless, petitioner argues on brief: 

“Is the issue of who receives the dependant [sic] deduction for

the 2007 tax year to be decided by who has more overnights? When

there are so few days of a difference?” 

Petitioner appears to disagree with the requirement that

Congress prescribed in section 152(c)(1)(B) to allow a taxpayer a

4See supra note 2.
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dependency exemption deduction for an individual only if, inter

alia, the individual has the same principal place of abode as the

taxpayer for more than one-half of the taxable year. We are

bound to follow the law as Congress wrote it.

On the record before us, we find that each of EP and RP does

not satisfy the principal-place-of-abode requirement in section

152(c)(1)(B). On that record, we further find that for petitioner’s taxable year 2007 each of EP and RP is not his qualifying child, as defined in section 152(c), and that therefore each

of them is not his dependent, as defined in section 152(a)(1).5

Based upon our examination of the entire record before us,

we find that petitioner has failed to carry his burden of estab5Although the parties do not address whether each of EP and

RP is petitioner’s qualifying relative, as defined in sec.

152(d), for the sake of completeness, we shall consider that

question. On the record before us, we find that petitioner has

failed to carry his burden of establishing that for his taxable

year 2007 each of the children is his qualifying relative, as

defined in sec. 152(d), and that therefore each of them is his

dependent, as defined in sec. 152(a)(2). In this regard, we find

on that record that petitioner has failed to carry his burden of

establishing, inter alia, that the support requirement in sec.

152(d)(1)(C) is satisfied with respect to each of EP and RP for

his taxable year 2007.

Respondent, but not petitioner, addresses whether the

special rule for divorced parents in sec. 152(e) is applicable in

the instant case. On the record before us, we find that the

special rule for divorced parents in sec. 152(e) is not applicable here. In this regard, we have found that Ms. Schouw did not

at any time waive her right to claim dependency exemption deductions for EP and RP for her taxable year 2007 and that petitioner

did not attach to his 2007 return a written declaration that Ms.

Schouw signed in which she waived her right to claim dependency

exemption deductions for the children.
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lishing that he is entitled for his taxable year 2007 to dependency exemption deductions under section 151(a) for EP and RP.

Child Tax Credit

Section 24(a) provides a credit with respect to each qualifying child of the taxpayer. As pertinent here, section 24(c)(1)

defines the term “qualifying child” as “a qualifying child of the

taxpayer (as defined in section 152(c)) who has not attained age

17.” Sec. 24(c)(1).

We have found that each of EP and RP is not petitioner’s

qualifying child, as defined in section 152(c), for his taxable

year 2007. On the record before us, we find that petitioner has

failed to carry his burden of establishing that each of the

children is his qualifying child, as defined in section 24(c),

for his taxable year 2007. On that record, we find that petitioner has failed to carry his burden of establishing that he is

entitled for his taxable year 2007 to the child tax credit under

section 24(a) with respect to EP and RP.

Additional Child Tax Credit

The child tax credit provided by section 24(a) may not

exceed the taxpayer’s regular tax liability. Sec. 24(b)(3). 

Where a taxpayer is eligible for the child tax credit, but the

taxpayer’s regular tax liability is less than the amount of the

child tax credit potentially available under section 24(a),
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section 24(d) makes a portion of the credit, known as the additional child tax credit, refundable.

We have found that petitioner has failed to carry his burden

of establishing that he is entitled for his taxable year 2007 to

the child tax credit under section 24(a) with respect to the

children. On the record before us, we find that petitioner has

failed to carry his burden of establishing that he is entitled

for his taxable year 2007 to the additional child tax credit

under section 24(d) with respect to EP and RP.

We have considered all of petitioner’s contentions and

arguments that are not discussed herein, and we find them to be

without merit, irrelevant, and/or moot.

To reflect the foregoing,

Decision will be entered

for respondent.