200

MICHAEL KEITH SHENK, PETITIONER v. COMMISSIONER

OF INTERNAL REVENUE, RESPONDENT

Docket No. 5706–12. Filed May 6, 2013. 

P was divorced from his wife, and their 2003 ‘‘Judgment of 

Absolute Divorce’’ provided that his ex-wife would have primary residential custody of their three minor children. The 

judgment provided that the dependency exemption deductions 

for the three children would be divided between the two exspouses according to various conditions but did not provide 

that the ex-wife must execute in P’s favor a Form 8332, 

‘‘Release of Claim to Exemption for Child of Divorced or Separated Parents’’. The children resided with P’s ex-wife for more 

than half of 2009, and P’s ex-wife did not execute in P’s favor 

any Form 8332 or equivalent document for any year. For 2009 

P timely filed a Federal income tax return on which he 

claimed dependency exemption deductions and the child tax 

credit for two of the children, consistent with his understanding of the terms of the judgment, but he did not attach 

any Form 8332 to his return. He also claimed head-of-household filing status. His ex-wife, the custodial parent, timely 

filed a Federal income tax return for 2009 on which she also 

(200) SHENK v. COMMISSIONER 201

1 Unless otherwise indicated, all citations of sections refer to the Internal 

Revenue Code (26 U.S.C.) in effect for the tax year at issue, and all citations of Rules refer to the Tax Court Rules of Practice and Procedure. 

claimed two dependency exemption deductions, so that one 

child was claimed on both parents’ returns. R allowed to P the 

dependency exemption deduction for one of the children but 

disallowed his claim for the dependency exemption deduction 

for the child who had also been claimed by the custodial 

parent. At trial P contended he is entitled to a dependency 

exemption deduction for all three children. Held: Since the 

custodial parent did not execute, and P could not and did not 

attach to his return, any Form 8332 or equivalent release, P 

is not entitled under I.R.C. sec. 152(e)(2)(A) to claim the 

dependency exemption deduction or the child tax credit. Held, 

further, where both the custodial parent and the noncustodial 

parent have claimed for the same year a dependency exemption deduction for the same child, a declaration signed by the 

custodial parent after the period of limitations for assessments has expired as to the custodial parent could not qualify 

under I.R.C. sec. 152(e)(2)(A), and therefore there is no reason 

to grant P’s request to leave the record open so that he may 

obtain and proffer such a declaration. Held, further, P is not 

entitled to head-of-household filing status under I.R.C. sec. 

2(b)(1) nor to the child tax credit under I.R.C. sec. 24. 

Michael Keith Shenk, for himself. 

Shari Salu, for respondent. 

GUSTAFSON, Judge: The Internal Revenue Service (IRS) 

determined a deficiency of $3,136 in the 2009 Federal income 

tax of petitioner Michael Keith Shenk. Mr. Shenk petitioned 

this Court, pursuant to section 6213(a), 1 for redetermination 

of the deficiency. After Mr. Shenk’s concession that he 

received but did not report $254 in dividend income, the 

issue for decision is whether Mr. Shenk is entitled to a 

dependency exemption deduction for one of his children 

under section 151(c), a child tax credit for that child under 

section 24(a), and head-of-household filing status under section 2(b)(1). On these issues, we hold for the IRS. 

FINDINGS OF FACT 

The judgment of divorce 

Mr. Shenk was married to Julie Phillips, and they have 

three minor children—M.S., W.S., and L.S. They divorced in 

2003. The family court’s ‘‘Judgment of Absolute Divorce’’ proVerDate Nov 24 2008 10:59 Jul 11, 2014 Jkt 372897 PO 20012 Frm 00002 Fmt 3857 Sfmt 3857 V:\FILES\BOUND VOL. WITHOUT CROP MARKS\B.V.140\SHENK JAMIE
202 140 UNITED STATES TAX COURT REPORTS (200) 

vided: that Ms. Phillips was ‘‘awarded primary residential 

custody’’ of the parties’ three children; and that Mr. Shenk 

would be liable for child support payments; but that, as to 

dependency exemptions— 

[I]n 2003, and in odd numbered years thereafter, provided that she is 

employed and earning income, defendant [Ms. Phillips] shall be entitled 

to claim the parties’ two younger children, W[ ] and L[ ], as dependency 

exemptions on her income tax returns; and, assuming he is current with 

his child support payments as of the end of the year, plaintiff [Mr. 

Shenk] shall be entitled in 2003, and in odd numbered years thereafter, 

to claim the parties’ oldest son, M[ ], as a dependency exemption on his 

income tax returns. In even numbered years, the parties’ entitlement to 

the foregoing dependency exemptions shall be reversed, with plaintiff 

having two exemptions and defendant having one, again assuming that 

defendant is employed and earning income and plaintiff is current with 

his child support payments at the end of the year in question * * *. 

[Emphasis added.] 

The IRS admits that this paragraph makes Ms. Phillips’s 

entitlement to the dependency exemptions to be contingent 

on her being employed. Mr. Shenk further contends, and we 

assume, that this paragraph is properly interpreted to allow 

a parent who does meet his or her condition (i.e., employment in the case of Ms. Phillips, and child support in the 

case of Mr. Shenk) to claim the dependency exemptions that 

would otherwise be allowed to a parent who fails to meet his 

or her condition. 

The judgment states no requirement that Ms. Phillips 

facilitate Mr. Shenk’s claim of dependency exemptions by 

executing a release (such as on Form 8332, ‘‘Release of Claim 

to Exemption for Child of Divorced or Separated Parents’’). 

The judgment was not formatted in such a way as to require 

or permit the parties to sign it, and neither Ms. Phillips nor 

Mr. Shenk signed the judgment. 

2009 tax returns 

In 2009 all three children resided with Ms. Phillips more 

than 50% of the time. As of the end of 2009 Mr. Shenk was 

up to date on his child support payments. Mr. Shenk contends, and we assume, that Ms. Phillips was not employed 

in 2009. 

Nonetheless, on a joint return filed with her then-current 

husband on April 15, 2010, Ms. Phillips reported income. 

(200) SHENK v. COMMISSIONER 203

(The return is not in our record, but we assume she reported 

non-employment income.) Because 2009 was an odd-numbered year, she also claimed two dependency exemption 

deductions for W.S. and L.S. 

However, consistent with his understanding of the 

meaning of the judgment of divorce, Mr. Shenk did not limit 

himself to claiming a dependency exemption deduction for 

M.S. Instead, on his return for 2009 Mr. Shenk claimed two 

such deductions—for M.S. and L.S.—because he believed Ms. 

Phillips had not been employed in 2009 and therefore did not 

meet the conditions for claiming dependency exemptions. (He 

argued at trial that his claim of only two exemptions was a 

mistake and that he should instead have claimed all three.) 

He also claimed the corresponding child tax credit, and he 

claimed head-of-household filing status. 

Disallowance by the IRS 

Because L.S. was thus claimed as a dependent on two 

returns, the IRS became aware of the dueling claims. The 

IRS allowed Ms. Phillips’s return to stand, leaving her with 

two dependency exemption deductions; and it disallowed one 

of the dependency exemption deductions claimed on Mr. 

Shenk’s return. On January 18, 2012, the IRS issued to Mr. 

Shenk a notice of deficiency for 2009, determining additional 

tax attributable to denying that second dependency exemption deduction, the child tax credit, and head-of-household 

filing status. 

Court proceedings 

On March 2, 2012, Mr. Shenk timely filed his petition in 

this Court. At the time he filed his petition, Mr. Shenk 

resided in Maryland. A year later, when this case was called 

from the calendar for trial on March 4, 2013, Mr. Shenk 

asked for a continuance so that he could request the family 

court to revise its judgment of divorce to require Ms. Phillips 

to execute Form 8332 in his favor, and so that he could then 

perfect his claim for the dependency exemption deductions by 

proffering that Form 8332. Respondent’s counsel stated that 

a Form 8332 may be effectively submitted even after the 

return has been filed, but argued that it must be submitted 

in time to allow the IRS to disallow a dependency exemption 

204 140 UNITED STATES TAX COURT REPORTS (200) 

deduction that was redundantly claimed by the custodial 

parent who executes Form 8332. Because the three-year 

period of limitations to assess any tax against Ms. Phillips 

on her 2009 return, see sec. 6501(a), presumably would 

expire April 15, 2013—i.e., six weeks after this case was 

called for trial—respondent’s counsel contended that, even if 

Mr. Shenk were successful in his attempt at obtaining a 

release, the IRS would be prejudiced by any delay and would 

be unable to assess any tax against Ms. Phillips. 

Because Mr. Shenk made no accounting for his having 

waited a year to try to obtain Form 8332, the Court denied 

Mr. Shenk’s motion for a continuance, stating that the parties should ‘‘go ahead and have today the trial that you are 

ready to have now, to put on the evidence you have to put 

on now,’’ and that the Court would then ‘‘entertain at the end 

of it whatever motion you want to make about keeping the 

record open.’’ Mr. Shenk put on his case and contended he 

is entitled to a dependency exemption deduction for all three 

children. At the end of trial, he again moved that the record 

be left open so that he could obtain and offer a Form 8332 

signed by his ex-wife for 2009. We denied the motion without 

prejudice and stated that we would delay issuing any opinion 

in the case until after April 15, 2013, in order to give Mr. 

Shenk the opportunity to obtain the Form 8332, if he could, 

and to move to reopen the record of this case by that date. 

He did not do so. 

OPINION 

I. The dependency exemption deduction 

A. The provisions of section 152 

An individual is allowed a deduction for an exemption for 

‘‘each individual who is a dependent (as defined in section 

152) of the taxpayer for the taxable year.’’ Sec. 151(c). Section 152(a) defines the term ‘‘dependent’’ to include ‘‘a qualifying child’’. Generally, a ‘‘qualifying child’’ must: (i) bear a 

specified relationship to the taxpayer (e.g., be a child of the 

taxpayer), (ii) have the same principal place of abode as the 

taxpayer for more than one-half of such taxable year, (iii) 

meet certain age requirements, (iv) not have provided over 

one-half of such individual’s support for the taxable year at 

(200) SHENK v. COMMISSIONER 205

2For these purposes, Ms. Phillips was the child’s custodial parent and 

Mr. Shenk was the child’s noncustodial parent, because the State court orders gave Ms. Phillips ‘‘primary residential custody’’ of their children. See 

sec. 152(e)(4); 26 C.F.R. sec. 1.152–4(d), Income Tax Regs. 

issue; and (v) not have filed a joint return for that year. Sec. 

152(c)(1). Under those provisions, Mr. Shenk could not claim 

his children as dependents for 2009 because, as he admits, 

they did not share the same place of abode with him for more 

than one-half of the year. 

However, in the case of divorced parents, special rules 

determine which parent may claim a dependency exemption 

deduction for a child. See sec. 152(e); Espinoza v. Commissioner, T.C. Memo. 2011–108; cf. sec. 152(c)(4). Pursuant to 

section 152(e), when certain criteria are met, a child may be 

treated as a qualifying child of the noncustodial parent (here, 

Mr. Shenk) rather than of the custodial parent (Ms. Phillips). 2 Sec. 152(e)(1); 26 C.F.R. sec. 1.152–4, Income Tax 

Regs. The child could be the qualifying child of Mr. Shenk, 

under section 152(e)(1) and (2), if— 

• The ‘‘child receives over one-half of the child’s support 

during the calendar year from the child’s parents * * * who 

are divorced * * * under a decree of divorce’’, sec. 

152(e)(1)(A); 

• such child was ‘‘in the custody of 1 or both of the child’s 

parents for more than one-half of the calendar year’’, sec. 

152(e)(1)(B); 

• ‘‘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’’, sec. 152(e)(2)(A); and 

• ‘‘the noncustodial parent attaches such written declaration 

to the noncustodial parent’s return’’ for the appropriate taxable year, sec. 152(e)(2)(B). 

B. The lack of a declaration 

Mr. Shenk’s claim in this case fails because he is unable 

to show compliance with the third and fourth of the statutory 

criteria stated above—i.e., Ms. Phillips did not ever sign a 

declaration that she ‘‘will not claim such child as a 

206 140 UNITED STATES TAX COURT REPORTS (200) 

3 A noncustodial parent may rely on an alternative document, provided 

that it ‘‘conform[s] to the substance’’ of Form 8332. 26 C.F.R. sec. 1.152– 

4(e)(1)(ii), Income Tax Regs. Form 8332 requires a taxpayer to furnish: the 

name of the child; the name and Social Security number of the noncustodial parent claiming the dependency exemption deduction; the Social Security number of the custodial parent; the signature of the custodial parent; 

the date of the custodial parent’s signature; and the year(s) for which the 

claims were released. For the year at issue here, a signed judgment copy 

of a court order cannot satisfy section 152(e)(2). See 26 C.F.R. sec. 1.152– 

4(e)(1)(ii) (‘‘A court order or decree or a separation agreement may not 

serve as a written declaration’’). Moreover, the fact that the court order entitling Mr. Shenk to a dependency exemption deduction was explicitly conditional also renders that document insufficient. See Armstrong v. Commissioner, 139 T.C. 468 (2012); 26 C.F.R. sec. 1.152–4(e)(1)(i). 

dependent’’, and Mr. Shenk did not ‘‘attach[ ] such written 

declaration to’’ his return. 

The IRS’s prescribed means for the noncustodial parent to 

make this declaration is Form 8332, on which the relevant 

statement is ‘‘I agree not to claim’’. But whether made on 

that form or by an equivalent document, 3 a basic element 

necessary for satisfying section 152(e)(2)(A) is a custodial 

parent’s declaration that (in the words of the statute) she 

‘‘will not claim’’ the child as a dependent for a taxable year. 

Ms. Phillips never signed any declaration that she would not 

claim a dependency exemption deduction. 

Mr. Shenk contends that under the conditions set out in 

the State court judgment of divorce, Ms. Phillips was not 

entitled to the disputed dependency exemption deduction, 

and he implicitly argues that she should have executed a 

declaration disclaiming and releasing the exemption. However, section 152(e) requires that a declaration be ‘‘sign[ed]’’. 

The IRS stipulates that Mr. Shenk met the condition of the 

judgment (i.e., he was up-to-date with his child support payments); and we assume, as Mr. Shenk contends, that Ms. 

Phillips did not meet the condition imposed on her by the 

judgment, so that as far as the State court was concerned, 

Mr. Shenk was entitled to the disputed deduction. But ultimately it is the Internal Revenue Code and not State court 

orders that determine one’s eligibility to claim a deduction 

for Federal income tax purposes, and Mr. Shenk does not 

meet the criteria of the Code for claiming the disputed 

dependency exemption deduction. He is the noncustodial 

(200) SHENK v. COMMISSIONER 207

4The House report stated: 

The present rules governing the allocations of the dependency exemption are often subjective and present difficult problems of proof and substantiation. * * * The committee wishes to provide more certainty by allowing the custodial spouse the exemption unless that spouse waives his 

or her right to claim the exemption. Thus, dependency disputes between 

parents will be resolved without the involvement of the Internal Revenue Service. [H.R. Rept. No. 98–432 (Part 2), at 1498–1499 (1984), 1984 

U.S.C.C.A.N. 697, 1140.] 

parent, and the custodial parent did not sign the required 

declaration. 

As we explained in Miller v. Commissioner, 114 T.C. 184, 

195–196 (2000), aff ’d on other grounds sub nom. Lovejoy v. 

Commissioner, 293 F.3d 1208 (10th Cir. 2002), Congress 

added the written declaration requirement to section 152(e) 

in 1984 to provide more certainty to the ‘‘often subjective and 

* * * difficult problems of proof and substantiation’’ that 

accompanied dependency exemption deduction disputes 

under the prior statutory scheme. H.R. Rept. No. 98–432 

(Part 2), at 1498 (1984), 1984 U.S.C.C.A.N. 697, 1140. 4 Any 

rule by which Mr. Shenk could prevail here would require us 

to revert to resolving those ‘‘difficult problems of proof and 

substantiation’’ that we were supposed to leave behind with 

the prior scheme—in this case, not only questions about 

whether Mr. Shenk had fulfilled his support obligations (a 

question apparently easy to answer in this instance, though 

difficult and controversial in others), but also questions about 

whether Ms. Phillips was ‘‘employed and earning income’’, as 

the judgment required. If such questions had to be answered 

before one could determine the proper claimant of the 

dependency exemption deduction, then section 152(e) would 

fail of its purpose. We therefore hold that under section 152, 

neither W.S. nor L.S. is a qualifying child of Mr. Shenk for 

tax year 2009; and as a result, Mr. Shenk is not entitled to 

the disputed dependency exemption deductions for 2009. 

C. The possibility of a future declaration 

Mr. Shenk asked us to leave open the trial record in this 

case so that he could move the State court to order Ms. Phillips to sign a Form 8332 that he could then submit. But even 

if we assume (without deciding) that a custodial parent’s declaration submitted after the custodial parent has filed his 

208 140 UNITED STATES TAX COURT REPORTS (200) 

5For competing views on whether a late-submitted declaration can be 

considered ‘‘attache[d] * * * to the noncustodial parent’s return’’, see Armstrong v. Commissioner, 139 T.C. at 479–481 (Goeke, J., concurring), and 

Armstrong v. Commissioner, 139 T.C. at 481–508 (Holmes, J., dissenting). 

We do not resolve that issue in this Opinion. 6Mr. Shenk did not make or attempt any showing that any exception to 

the general rule, see sec. 6501(c), might apply. 

return could sometimes qualify as being ‘‘attache[d] * * * to 

the noncustodial parent’s return’’ for purposes of section 

152(e)(2)(B), 5 any declaration that Mr. Shenk could now 

obtain and submit would fail to qualify under section 

152(e)(2)(A). 

Ms. Phillips claimed L.S. as a dependent on her 2009 

income tax return filed April 15, 2010—i.e., more than three 

years ago. Under section 6501(a), the general three-year 

period of limitations for assessing tax against her for 2009 

expired on April 15, 2013. 6 Thus, in this case the custodial 

parent did ‘‘claim such child as a dependent’’; the IRS did not 

disallow the claim; and the period of limitations for assessing 

tax against the custodial parent has now run. A clear purpose of the statute is to prevent a dependency exemption 

deduction for one child to be claimed by and allowed for two 

parents; but if Mr. Shenk could succeed at what he now proposes, both parents would obtain the deductions for W.S. and 

L.S. The statute does not permit this outcome, as we now 

show: 

If Ms. Phillips were now to sign a declaration that she 

‘‘will not claim such child as a dependent’’ (or, as Form 8332 

would have her put it, ‘‘I agree not to claim an exemption 

for’’ the child), that declaration would be both contrary to fact 

and without legal effect. She did claim the deduction for L.S.; 

the IRS allowed it; and it is now evidently too late for the 

IRS to take it back. In order for the custodial parent to sign 

a meaningful declaration to the effect that she ‘‘will not 

claim such child as a dependent’’—i.e., that she agrees not do 

so in the future—she ought to make that declaration before 

she has filed any return claiming the child as a dependent. 

But if she has already filed a return claiming the child as a 

dependent, perhaps she could nonetheless meaningfully so 

declare if she does so at the time she files an amended return 

on which she disclaims the deduction; in that case, she 

agrees not to claim the exemption again. Or, if she has 

(200) SHENK v. COMMISSIONER 209

already filed a return claiming the child as a dependent and 

does not amend that return, perhaps her declaration could 

have some minimal significance if the period of limitations 

for assessment were still open and her statement therefore 

left her susceptible to having the IRS disallow her deduction 

and assess the corresponding tax against her; in that case, 

she agrees not to claim the exemption if she is challenged. 

But once the period of limitations for assessment has 

expired and the custodial parent’s claim of the child as a 

dependent is not susceptible to being disturbed, any statement by her that she ‘‘will not claim such child as a 

dependent’’ for that year would be absurd. The time for her 

to declare what she ‘‘will’’ do as to that taxable year has necessarily come and gone. As a logical matter and by definition, 

she is unable to declare what she ‘‘will’’ do about a past year 

now closed, so she is no longer capable of signing a declaration that qualifies under section 152(e)(2)(A). Consequently, 

even if the concept in section 152(e)(2)(B) of being ‘‘attache[d] 

* * * to the return’’ has enough flexibility to allow a noncustodial parent to submit a declaration at some point after 

the filing of his return, that flexibility must have limits—and 

the outside limit would surely be the custodial parent’s 

period of limitations. Beyond that point, any declaration that 

the noncustodial parent ‘‘attaches’’ fails to qualify under section 152(e)(2)(A) as a statement of what she ‘‘will’’ do. 

II. Child tax credit 

A taxpayer is entitled to a child tax credit for ‘‘each qualifying child’’, as defined in section 152, who has not reached 

the age of 17 and for whom the taxpayer is allowed a dependency exemption deduction under section 151. Sec. 24(a), 

(c)(1). Given our determination that, under section 152, neither W.S. nor L.S. is a ‘‘qualifying child’’ of Mr. Shenk for the 

year at issue and that Mr. Shenk is not allowed the dependency exemption deduction for either of them, it follows that 

Mr. Shenk is not entitled to a child tax credit for W.S. or L.S. 

for that year. 

III. Head-of-household filing status 

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210 140 UNITED STATES TAX COURT REPORTS (200) 

able rates for a ‘‘head of a household (as defined in section 

2(b))’’. Section 2(b) in turn defines a ‘‘head of a household’’, 

and one of the criteria for that status is that the taxpayer 

‘‘maintains as his home a household which constitutes for 

more than one-half of such taxable year the principal place 

of abode, as a member of such household, of * * * (i) a qualifying child of the individual (as defined in section 152(c), 

determined without regard to section 152(e))’’. Sec. 2(b)(1)(A). 

Under section 152(c)(1)(B), a ‘‘qualifying child’’ must have 

‘‘the same principal place of abode as the taxpayer for more 

than one-half of such taxable year’’; and by providing that 

the child’s status is determined ‘‘without regard to section 

152(e) [‘‘Special Rule for Divorced Parents, Etc.’’]’’, section 

2(b) provides that a noncustodial parent cannot meet the 

‘‘principal abode’’ requirement by obtaining a declaration 

from the custodial parent. Rather, head-of-household status 

depends on having a qualifying child actually sharing the 

taxpayer’s place of abode for more than half of the year. 

Mr. Shenk admits, however, that all three of his children 

resided with their mother for more than half of 2009 and 

with him for less than half of 2009. Consequently, no qualifying child lived with Mr. Shenk in his place of abode for 

more than half of that year, so he is not entitled to head-ofhousehold filing status. 

In view of the foregoing, 

Decision will be entered for respondent

f 

.