T.C. Memo. 2011-108

UNITED STATES TAX COURT

ONESIMO R. ESPINOZA, Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

 Docket No. 12084-09. Filed May 23, 2011.

 Onesimo R. Espinoza, pro se.

 Robert V. Boeshaar, for respondent.

MEMORANDUM FINDINGS OF FACT AND OPINION

COHEN, Judge: Respondent determined a deficiency in

petitioner’s Federal income tax for 2007. The issues for

decision are whether petitioner is entitled to a dependency

exemption deduction, whether he is entitled to the child tax

credit, and whether he is entitled to head of household filing
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status for 2007. All section references are to the Internal

Revenue Code in effect for 2007.

FINDINGS OF FACT

Some of the facts have been stipulated, and the stipulated

facts are incorporated in our findings by this reference. 

Petitioner resided in Washington State when he filed his

petition.

Petitioner’s son was born September 21, 1991. Petitioner

and his son’s mother were divorced in 1992. In a Permanent Order

of Child Support filed November 17, 1992, in the Superior Court

of Washington, County of Thurston, petitioner was ordered to pay

to his son’s mother child support of $320 per month. One

provision of that order permitted petitioner, for income tax

purposes, to claim his son as a dependent in odd years provided

that his child support payments were current. Petitioner

continued to pay that amount throughout 2007.

Petitioner’s son lived with petitioner’s former wife for all

of 2007, and she was the custodial parent. 

On his Federal tax return for 2007, petitioner claimed a

dependency exemption deduction and a $1,000 child tax credit in

relation to his son and reported his tax liability using head of

household rates. Petitioner did not attach to the return a Form

8332, Release of Claim to Exemption for Child of Divorced or

Separated Parents, because his son’s mother did not provide a
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signed Form 8332 despite petitioner’s efforts to secure one from

her.

OPINION

The Internal Revenue Code allows as a deduction in computing

taxable income an exemption for each dependent of a taxpayer. 

Sec. 151(c). A child of a taxpayer generally qualifies as a

dependent if the child shares the same principal place of abode

as the taxpayer for more than one-half of the tax year in issue.

Sec. 152(a), (c). However, section 152(e)(1) limits the

dependency exemption deduction where the child’s parents live

apart.

In the case of divorced or separated parents, special rules

determine which parent may claim a dependency exemption deduction

for a child. See sec. 152(e). As relevant to the present case,

section 152(e)(2) allows the noncustodial parent to claim a

dependency exemption deduction for a child if the custodial

parent signs a written declaration releasing her claim to the

exemption and the noncustodial parent attaches the declaration to

his Federal income tax return.

The declaration required by section 152(e)(2) must be made

on either Form 8332 or on a statement conforming to the substance

of that form. See Miller v. Commissioner, 114 T.C. 184, 190-191

(2000), affd. sub nom. Lovejoy v. Commissioner, 293 F.3d 1208

(10th Cir. 2002). Form 8332 requires a taxpayer to furnish: (1)
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The name of each child, (2) the name and Social Security number

of the noncustodial parent claiming the dependency exemption, (3)

the Social Security number of the custodial parent, (4) the

signature of the custodial parent, (5) the date of the custodial

parent’s signature, and (6) the year or years for which the

claims were released. Id. at 190. “The exemption may be

released for a single year, for a number of specified years (for

example, alternate years), or for all future years, as specified

in the declaration.” Sec. 1.152-4T(a), Q&A-4, Temporary Income

Tax Regs., 49 Fed. Reg. 34459 (Aug. 31, 1984).

Petitioner could not obtain a Form 8332 executed by the

mother of his son, and, as a result, he could not attach this

required form to his 2007 Federal income tax return. Petitioner

is therefore not entitled to the dependency exemption deduction

under section 152(e)(2). See, e.g., Himes v. Commissioner, T.C.

Memo. 2010-97; Gessic v. Commissioner, T.C. Memo. 2010-88; Thomas

v. Commissioner, T.C. Memo. 2010-11; Walker v. Commissioner, T.C.

Memo. 2008-194.

Section 24(a) authorizes a child tax credit with respect to

each qualifying child of the taxpayer. The term “qualifying

child”, for purposes of the child tax credit, means a qualifying

child as defined in section 152(c) who has not attained age 17.

Sec. 24(c)(1). Because petitioner did not establish that his son

was a qualifying child under section 152(c) or the exception in
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section 152(e)(2), he does not satisfy the “qualifying child”

requirement of the child tax credit under section 24. Thus, he

is not entitled to the child tax credit claimed with respect to

his son.

Section 1(b) establishes a special income tax rate for

individual taxpayers filing as head of a household. Section 2(b)

provides the requirements for head of household filing status. 

In order to qualify as head of a household, petitioner must have

been unmarried at the end of 2007 and maintained a household that

was the principal place of abode of at least one dependent for

more than one-half of the taxable year. See sec. 2(b)(1)(A). 

Petitioner’s home was not the principal place of abode of his

son, and he has not suggested that any other person qualifies as

his dependent during 2007. Thus he must use single filing status

in calculating his 2007 tax liability.

Decision will be entered for

respondent.