T.C. Memo. 2008-194

UNITED STATES TAX COURT

TIM WALKER, Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 1949-07. Filed August 18, 2008.

Tim Walker, pro se.

John D. Davis, for respondent.

MEMORANDUM OPINION

COHEN, Judge: Respondent determined a deficiency of $1,800

in petitioner’s Federal income tax for 2005. The issue for

decision is whether petitioner is entitled to a dependency

exemption deduction and a child tax credit for the year in issue. 
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Unless otherwise indicated, all section references are to the

Internal Revenue Code in effect for the year in issue.

Background

Some of the facts have been stipulated, and the stipulated

facts are incorporated in our findings by this reference. 

Petitioner resided in Washington at the time that his petition

was filed. 

Petitioner has two daughters, both of whom lived with their

mother, and not petitioner, in 2005. An order of child support,

dated April 20, 1995, provides that petitioner is to claim one

daughter, A, for Federal income tax purposes, and the mother is

to claim the other daughter, C. The order also states that the

parents are to sign a Federal income tax dependency exemption

waiver (either a Form 8332, Release of Claim to Exemption for

Child of Divorced or Separated Parents, or a written declaration

conforming to the substance of Form 8332). Petitioner paid child

support during 2005. Petitioner, however, claimed a dependency

exemption deduction for C on his 2005 Federal income tax return

and did not acquire a signed dependency exemption waiver from C’s

mother. Therefore no Form 8332, or its equivalent, was attached

to petitioner’s 2005 return.

The Internal Revenue Service sent a notice of deficiency to

petitioner for 2005, disallowing the dependency exemption on the

grounds that petitioner did not establish his entitlement to the
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exemption. As a result, C was determined not to be a qualifying

child for petitioner, and the corresponding child tax credit was

disallowed.

Discussion

Our statement of background facts is sparse because there is

no evidence explaining the context in which the child support

paid by petitioner was ordered. However, respondent does not

dispute that C is petitioner’s child, petitioner is living apart

from C’s mother, and more than one-half of C’s support came from

her parents in 2005. Also, in view of our conclusion, we need

not address the inconsistency of the stipulated order for child

support and petitioner’s claim of C, rather than A, as a

dependent.

The Internal Revenue Code allows as a deduction an exemption

for each dependent of a taxpayer in computing taxable income.

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 where the child’s parents live apart, as

follows:

SEC. 152(e). Special Rule for Divorced Parents, Etc.--

(1) In general. * * * if--
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(A) a child receives over one-half of the

child’s support during the calendar year from the

child’s parents--

(i) who are divorced or legally

separated under a decree of divorce or

separate maintenance,

(ii) who are separated under a written

separation agreement, or

(iii) who live apart at all times

during the last 6 months of the calendar

year, and--

(B) such child is in the custody of 1 or

both of the child’s parents for more than one-half

of the calendar year, such child shall be treated

as being the qualifying child or qualifying

relative of the noncustodial parent for a calendar

year if the requirements described in paragraph

(2) or (3) are met.

Petitioner is not the custodial parent of his child C. His

entitlement to the deduction (and related child tax credit)

depends on the applicability of section 152(e)(2), which

provides:

(2) Exception where custodial parent releases

claim to exemption for the year.--For purposes of

paragraph (1), the requirements described in this

paragraph are met with respect to any calendar year 

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.
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The form prescribed for the waiver described in section

152(e)(2) is Form 8332, which must be executed by the custodial

parent and attached to the Federal income tax return of the

noncustodial parent in order for the noncustodial parent to

receive the dependency exemption. Miller v. Commissioner, 114

T.C. 184, 190-191 (2000), affd. sub nom. Lovejoy v. Commissioner,

293 F.3d 1208 (10th Cir. 2002). Petitioner did not obtain a Form

8332 executed by the mother of his children and, as a result,

could not attach this required form to his 2005 Federal income

tax return. Petitioner is therefore not entitled to the

dependency exemption under section 152(e)(2).

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 C was a

qualifying child under either section 152(c) or the exception of

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 C

for the year in issue.

In reaching our decision, we have considered all arguments

made, and, to the extent not mentioned, we conclude that they are

irrelevant, moot, or without merit.
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To reflect the foregoing,

Decision will be entered for

respondent.