T.C. Memo. 2002-298

UNITED STATES TAX COURT

MICHAEL R. LOFFER, Petitioner v. 

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 10982-00. Filed December 4, 2002.

Michael R. Loffer, pro se.

Donald E. Edwards, for respondent.

MEMORANDUM FINDINGS OF FACT AND OPINION

SWIFT, Judge: Respondent determined a deficiency in

petitioner’s Federal income tax for 1998 of $1,156.
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Unless otherwise indicated, all section references are to

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

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

Procedure.

After concessions, the remaining issue for decision is

whether for 1998 petitioner is entitled to a dependency exemption

and to a child tax credit with respect to his daughter.

FINDINGS OF FACT

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

At the time the petition was filed, petitioner resided in

Owasso, Oklahoma.

Petitioner and Ms. Thompson, petitioner’s former wife, have

two children, John and Samantha.

On April 25, 1994, petitioner and Ms. Thompson were

divorced. In the divorce decree it was specified that petitioner

and Ms. Thompson each were entitled to claim one of the two

children as a dependent for Federal income tax purposes.

Specifically, the divorce decree provided as follows:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that

the parties shall each be entitled to claim one of the

parties’ two minor children as a dependent for federal

and state income tax purposes so long as there are two

children who can be claimed, commencing 1993 and each

year thereafter. The parties shall execute and

exchange any IRS document required to claim the

dependent children on or before February 1 of each

year.
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For all of 1998, Samantha, then 13 years old, resided with

her mother, Ms. Thompson. 

From January through April of 1998, John, then 18 years old,

lived with his mother. For the remainder of 1998, John lived

with petitioner. 

On her 1998 Federal income tax return, Ms. Thompson claimed

a dependency exemption and a child tax credit with respect to

Samantha. 

On his 1998 individual Federal income tax return to which he

attached a copy of the above divorce decree, petitioner reported

taxable income of $49,904, and petitioner claimed a dependency

exemption and a child tax credit with respect to Samantha. 

On their separate tax returns for 1998, neither petitioner,

nor Ms. Thompson, claimed John as a dependent.

On audit, respondent denied petitioner’s claimed dependency

exemption and child tax credit with respect to Samantha. At

trial, respondent concedes that for 1998 petitioner is entitled

to change his filing status from single to head of household and

that petitioner is entitled to a dependency exemption with

respect to John. 

OPINION

Ordinarily, a taxpayer may claim a dependency exemption with

respect to a child for a particular year if the taxpayer provides

more than half of the child’s support in the year for which the
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exemption is claimed. Secs. 151(c)(1), 152(a). Where parents

are divorced or separated, the parent who has physical custody of

a child for the greater portion of a calendar year (the

“custodial parent”) generally is deemed to provide more than half

of such child’s support in that year. Sec. 152(e). 

A custodial parent, however, may release the right to a

dependency exemption with respect to a child by declaring in a

written statement that he or she will not claim the child as a

dependent for a particular year. Sec. 152(e)(2)(A). If the

custodial parent releases his or her right to a dependency

exemption with respect to a child, the noncustodial parent may

claim the dependency exemption for that child provided the

noncustodial parent attaches the custodial parent’s written

release statement to the noncustodial parent’s tax return. Sec.

152(e)(2)(B). 

Under section 152(e)(2), respondent issued Form 8332

(Release of Claim to Exemption for Child of Divorced or Separated

Parents) for taxpayers to use to satisfy the written declaration

requirement of section 152(e)(2). Using Form 8332, the custodial

parent is to provide the following: (1) The name of the child

with respect to which an exemption is released; (2) the year for

which the exemption is released to the noncustodial parent;

(3) signature, date of signature, and Social Security number of

the custodial parent; and (4) the name and Social Security number
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of the noncustodial parent to whom the exemption is released. A

properly completed and filed Form 8332 will entitle a

noncustodial parent to the related dependency exemption. A

written statement attached to the noncustodial parent’s tax

return other than a Form 8332 that conforms to the substance of

Form 8332 will also be sufficient to release the dependency

exemption to the noncustodial spouse and entitle the noncustodial

spouse to claim the exemption. Sec. 1.152-4T(a), Q&A-3,

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

A taxpayer may also be entitled to a tax credit with respect

to a child if, among other requirements, the taxpayer is entitled

to a dependency exemption with respect to the child and the child

is under the age of 17 at the close of the calendar year for

which the tax credit is claimed. Sec. 24(c)(1)(A) and (B). 

With respect to Samantha, petitioner did not attach to his

1998 individual Federal income tax return a Form 8332. 

Petitioner argues, however, that the copy of the divorce decree

that he did attach to his 1998 individual Federal income tax

return substantially conforms to the substance of Form 8332 and

should satisfy the written declaration requirement of section

152(e)(2). Petitioner therefore maintains that he is entitled to

the dependency exemption and to the tax credit with respect to

Samantha. 
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We agree with respondent that the divorce decree at issue

here does not substantially conform to Form 8332. Although

Ms. Thompson signed the divorce decree in question, it is not

indicated in the divorce decree which child petitioner was to

claim as a dependent and no year is specified. Petitioner is not

entitled to the claimed dependency exemption with respect to

Samantha for 1998. See Miller v. Commissioner, 114 T.C. 184

(2000). 

Because petitioner is not entitled to a dependency exemption

with respect to Samantha for 1998, petitioner also is not allowed

the claimed child tax credit with respect to Samantha for 1998.

To reflect the foregoing,

Decision will be entered 

 under Rule 155.