T.C. Summary Opinion 2006-180

UNITED STATES TAX COURT

JERRY JEFFERSON KIRKEBY AND YING WANG, Petitioners v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 21371-05S. Filed November 6, 2006. 

Jerry Jefferson Kirkeby and Ying Wang, pro sese.

Jonathan A. Neumann, for respondent.

DEAN, Special Trial Judge: This case was heard pursuant to 

the provisions of section 7463 of the Internal Revenue Code. 

Unless otherwise indicated, subsequent section references are to

the Internal Revenue Code as in effect for the year at issue, and

all Rule references are to the Tax Court Rules of Practice and

Procedure. The decision to be entered is not reviewable by any

other court, and this opinion should not be cited as authority.
- 2 -

1The Court will refer to the minor child by her initials.

Respondent determined a deficiency in petitioners’ Federal

income tax of $1,058 for 2003. The issues for decision are

whether petitioners are entitled to claim: (1) A dependency

exemption deduction, and (2) a child tax credit.

Background

The stipulation of facts and the exhibits received into

evidence are incorporated herein by reference. At the time the

petition in this case was filed, petitioners resided in Santa

Rosa, California.

Petitioner Ying Wang (Ms. Wang) and James Hammer (Mr.

Hammer) are the biological parents of JJH.1 Ms. Wang and Mr.

Hammer divorced around 1989, and Ms. Wang was awarded custody of

JJH. JJH has lived with Ms. Wang at all times since the divorce. 

Petitioners filed a Form 1040, U.S. Individual Income Tax

Return, for 2003, claiming for JJH a dependency exemption

deduction and a child tax credit. Respondent issued to

petitioners a statutory notice of deficiency, determining that

they are not entitled to claim JJH as a dependent because Ms.

Wang executed a Form 8332, Release of Claim to Exemption for

Child of Divorced or Separated Parents, in favor of Mr. Hammer

for 1988 and all years thereafter.
- 3 -

2Petitioners have not raised the issue of sec. 7491(a),

which shifts the burden of proof to the Commissioner in certain

situations. This Court concludes that sec. 7491 does not apply

because petitioners have not produced any evidence that

establishes the preconditions for its application.

Discussion

The Commissioner’s determinations are presumed correct, and

generally taxpayers bear the burden of proving otherwise.2 Rule

142(a)(1); Welch v. Helvering, 290 U.S. 111, 115 (1933). 

Dependency Exemption

Section 151(c)(1) allows a taxpayer to claim an exemption

deduction for each qualifying dependent. A child of the taxpayer

is considered a “dependent” so long as the child has not attained

the age of 19 at the close of the calendar year in which the

taxable year of the taxpayer begins and more than half the

child’s support for the taxable year was received from the

taxpayer. Secs. 151(c)(1)(B), 152(a)(1). The age limit is

increased to 24 if the child is a student as defined by section

151(c)(4). Sec. 151(c)(1)(B). 

In the case of a child whose parents are divorced or legally

separated and together provide over half of the support for the

child, section 152(e)(1) provides that the parent having custody

for a greater portion of the calendar year (custodial parent)

generally shall be treated as providing over half of the support

for the child. A noncustodial parent may be treated as providing
- 4 -

over half of the support if the requirements under section

152(e)(2) are satisfied. Section 152(e)(2) provides:

 (2) Exception where custodial parent releases

claim to exemption for the year.--A child * * * 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.

 

To release a claim to a dependency exemption deduction

properly, the custodial parent must sign a written declaration

with an express statement that such custodial parent will not

claim that child as a dependent. Sec. 152(e)(2); Miller v.

Commissioner, 114 T.C. 184, 190-191 (2000); Bramante v.

Commissioner, T.C. Memo. 2002-228. A validly executed Form 8332

satisfies the written declaration requirement. King v.

Commissioner, 121 T.C. 245, 249 (2003); Brissett v. Commissioner,

T.C. Memo. 2003-310. 

It is not disputed that Ms. Wang was the custodial parent of

JJH during 2003. Respondent argues that petitioners are not

entitled to claim JJH as a dependent because Ms. Wang executed a

Form 8332 in favor of Mr. Hammer. In the Form 8332, Ms. Wang
- 5 -

agreed not to claim an exemption for JJH for 1988 and “all future

years”.

Ms. Wang argues that the Form 8332 is not a valid release

because it is “fraudulent”, and she could not recall signing the

form. Ms. Wang nevertheless admitted at trial that she

recognized the signature on the Form 8332 as hers. Ms. Wang

further argues that even if she had signed the Form 8332, Mr.

Hammer took advantage of her minimal command of English and

deceived her as to the legal consequences of signing the form. 

She noted that the Form 8332 contained several different

handwritings and suggested an inference that the form was blank

at the time she signed it, and the remaining information was

filled in by Mr. Hammer at a later time. 

The signature of the custodial parent confirms the custodial

parent’s intention to release the dependency exemption to the

noncustodial parent and signifies an agreement not to claim the

dependency exemption. Miller v. Commissioner, supra at 193.

By signing the form, Ms. Wang affirmatively consented to the

release of the dependency exemption deduction for JJH to Mr.

Hammer. Even if the Form 8332 contained different handwritings,

without more, they fail to support one way or the other what Ms.

Wang’s intent was at the time she signed the form. Petitioners

have the burden of proof, and they have failed to offer any other
- 6 -

evidence to show that Ms. Wang did not have the intent to release

her right to claim JJH as a dependent.

Ms. Wang had a duty to make the appropriate inquiries before

she signed the Form 8332 permanently releasing her claim to

exemption deductions for JJH. See King v. Commissioner, supra at

253. The Court will not ignore the properly executed form. For

section 152(e) to operate as intended by Congress, strict

adherence to the requirements of section 152(e) must be observed. 

Miller v. Commissioner, supra at 196; Bramante v. Commissioner,

supra; Cafarelli v. Commissioner, T.C. Memo. 1994-265.

Therefore, petitioners are not entitled to claim for 2003 a

dependency exemption deduction for JJH under section 151.

Child Tax Credit

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

each qualifying child of the taxpayer. The term “qualifying

child” is defined in section 24(c). A “qualifying child” means

an individual with respect to whom the taxpayer is allowed a

deduction under section 151, who has not attained the age of 17

as of the close of the taxable year and who bears a relationship

to the taxpayer as prescribed by section 32(c)(3)(B). Sec.

24(c)(1).

Since petitioners are not allowed a deduction with respect

to JJH as a dependent under section 151, JJH is not a qualifying
- 7 -

child. In the absence of a qualifying child in 2003, petitioners

are not entitled to claim a child tax credit.

Reviewed and adopted as the report of the Small Tax Case

Division.

To reflect the foregoing,

Decision will be entered

for respondent.