billy edward armstrong and phoebe j armstrong petitioners v commissioner of internal revenue respondent docket no filed date p-h was divorced and his ex-wife had custody of their son c e a date arbitration award a date state court order and a date state court order provided that p-h would be entitled to the dependency_exemption for c e and the date order explicitly required his ex-wife to execute in his favor a form_8332 release of claim to exemption for child of divorced or separated parents on the condition that p-h pay child_support for c e p-h paid the full amount of child_support throughout but his ex- wife failed to provide the executed form_8332 p-h remarried ps timely filed their joint federal_income_tax return attaching the date arbitration award during an examination of that return ps also provided r with p-h’s and child_support orders the latter signed by p-h’s ex-wife r disallowed ps’ claim for a dependency exemp- tion deduction for c e for tax_year held as a sub- stitute for form_8332 the state court order signed by p-h’s ex-wife c e ’s custodial_parent does not comply with sec_152 because it fails to unconditionally declare that the ex-wife will not claim such child as a dependent for the year at issue billy edward armstrong and phoebe j armstrong for themselves lisa r woods for respondent gustafson judge the internal_revenue_service irs determined a deficiency of dollar_figure in the federal_income_tax of petitioners billy edward armstrong and phoebe j armstrong and an accuracy-related_penalty of dollar_figure pursuant to sec_6662 the armstrongs petitioned this court pursuant to sec_6213 to redetermine the deficiency and the accompanying penalty the case is now before the court on the commissioner’s unopposed motion to submit the case without trial on the basis of the parties’ stipulation of facts pursuant to rule the issues for decision are whether the armstrongs are entitled to a dependency exemp- tion deduction and a child_tax_credit for mr armstrong’s son unless otherwise indicated all citations of sections refer to the internal_revenue_code_of_1986 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 verdate nov jun jkt po frm fmt sfmt v files bound vol without crop marks b v armstr dec jamie armstrong v commissioner for the tax_year and if not whether the armstrongs are liable for an accuracy-related_penalty on the resulting deficiency we conclude that the armstrongs are not entitled to the deduction and the credit but that they are not liable for the penalty findings_of_fact mr armstrong is a truck driver he and his former wife dawn delaney divorced and in the couple agreed to resolve by arbitration unspecified questions regarding the support of their two children the children stayed in ms delaney’s custody but the arbitration resulted in a date arbitration award that granted to ms delaney the tax exemption for c w and to mr armstrong the tax exemp- tion for c e under the arbitration award mr armstrong would get the dependency_exemption for c e outright for tax years and but he would get it for later years including only if he stayed current with child_support the arbitration award did not include a provision requiring ms delaney to provide mr armstrong with a form_8332 release of claim to exemption for child of divorced or separated parents as we will explain below form_8332 is the document by which a parent who does not have custody of a child may nonetheless become entitled to claim a dependency_exemption deduction for the child in date the washington state court overseeing the divorce entered an agreed order of child_support on arbitration that incorporated this arbitration award and likewise did not require ms delaney to give mr armstrong a form_8332 in date for reasons not in the record the wash- ington state court changed the date order the date order contained the following provision dollar_figure income_tax exemptions tax exemptions for the children shall be allocated as follows the mother shall have the exemption for c w and the father shall have the exemption for c e as long as the father is current with his child_support obligation for the tax_year involved in reviewing whether or not the father is current he must have made all twelve of the tax year’s child_support payments by december 31st of that tax_year pursuant to rule a we refer to minor children by their initials verdate nov jun jkt po frm fmt sfmt v files bound vol without crop marks b v armstr dec jamie united_states tax_court reports if payments are current the mother shall provide the father for each enti- tled year with an executed irs form_8332 release of claim to exemption for child of divorced or separated parents or its equivalent not later than january 31st of the year immediately following the year for which the tax exemption is to be claimed the purpose of this provision is to ensure prompt and regular payment of the child_support obligation therefore exemptions lost by failure to be current on child_support payments cannot later be claimed or asserted by subsequent payment of back payments or arrears nor claimed as a set-off for unpaid support the parents shall sign the federal_income_tax dependency_exemption waiver emphasis altered ms delaney signed the date order by mr armstrong had remarried he had consist- ently made his child_support payments required under the state court’s orders but ms delaney nonetheless failed to give him an executed form_8332 for lacking that form the armstrongs attached a copy of the arbitration award to their timely filed joint federal_income_tax return the irs examined that return during the course of the audit the armstrongs sent to the irs copies of the and child_support orders the latter of which had been signed by ms delaney the commissioner nonetheless rejected the armstrongs’ claim for a dependency_exemption deduction and a child_tax_credit for c e because the award and orders were condition al upon mr armstrong’s staying current with his support obligations the irs also determined an accuracy-related_penalty the armstrongs timely peti- tioned this court and at that time they resided in south dakota the parties stipulated the facts and submitted the case for decision without trial opinion i dependency_exemption deduction claims under sec_152 an individual is allowed a deduction for exemption for each individual who is a dependent as defined in sec_152 of the taxpayer for the taxable_year sec_151 sec- tion a defines the term dependent to include a quali- fying child generally a qualifying_child must i bear a specified relationship to the taxpayer eg 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 verdate nov jun jkt po frm fmt sfmt v files bound vol without crop marks b v armstr dec jamie armstrong v commissioner meet certain age requirements and iv not have provided over one-half of such individual’s support for the taxable_year at issue sec_152 under those provisions mr arm- strong could not claim c e as a dependent for because they did not have the same place of abode 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 espinoza v commis- sioner tcmemo_2011_108 cf sec_152 pursuant to sec_152 when certain criteria are met a child like c e may be treated as a qualifying_child of the noncustodial_parent here mr armstrong rather than of the custodial_parent ms delaney sec_152 c f_r sec_1 4t a q a-2 temporary income_tax regs fed reg date c e could be the qualifying_child of mr armstrong under sec_152 and 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 such child was in the custody of or both of the child’s parents for more than one-half of the calendar_year sec_152 the custodial_parent signs a written declaration in such a manner and form as the secretary may by regulations pre- scribe that such custodial_parent will not claim such child as a dependent for any taxable_year beginning in such cal- endar year sec_152 and the noncustodial_parent attaches such written declara- tion to the noncustodial parent’s return for the appropriate taxable_year sec_152 this case turns on whether mr armstrong is able to show compliance with the third of these criteria 4-ie whether for these purposes ms delaney was c e ’s custodial_parent and mr armstrong was c e ’s noncustodial_parent because the state court orders gave ms delaney sole custody of c e see sec_152 sec_1_152-4 income_tax regs the commissioner also argues that the armstrongs are unable to show compliance with the fourth criterion-ie attach ing such written declaration to the noncustodial parent’s re- turn -since the armstrongs attached to their tax_return only the date arbitration award and not the date court order that ms delaney actually signed since we are able to re- solve the case on the basis of the third criterion we need not and do not reach this fourth cri- continued verdate nov jun jkt po frm fmt sfmt v files bound vol without crop marks b v armstr dec jamie united_states tax_court reports ms delaney ever signed a declaration that she will not claim such child as a dependent the irs’s form_8332 provides an effective and uniform way for a custodial_parent to make the declaration required in sec_152 for the benefit of the noncustodial_parent but a noncustodial_parent like mr armstrong may also rely on an alternative document provided that it conform s to the substance of form_8332 see c f_r sec_1 4t a q a-3 temporary income_tax regs supra in par- ticular for tax years including the year at issue here a court order that has been signed by the custodial_parent may sat- isfy sec_152 as the noncustodial parent’s declara- tion if the document conform s to the substance of form_8332 see briscoe v commissioner tcmemo_2011_165 concluding that the court order attached with the return did not conform with the substance of form cf boltinghouse v commissioner tcmemo_2003_134 holding a separation agreement conformed with the substance of form for satisfying a basic element necessary sec_152 is a custodial parent’s declaration that she will not claim the child as a dependent for a taxable_year a custodial_parent accomplishes this on a form_8332 with the following statement i agree not to claim for the tax_year this statement is unconditional and in order for a document to comply with the substance of form_8332 and ultimately sec_152 the declaration on the docu- ment must also be unconditional see gessic v commis- sioner tcmemo_2010_88 thomas v commissioner tcmemo_2010_11 boltinghouse v commissioner tcmemo_2003_134 horn v commissioner tcmemo_2002_290 terion form_8332 requires a taxpayer to furnish the name of the child the name and social secu- rity 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 taxable years starting after date a court order signed by the custodial_parent will not satisfy c f_r sec_1_152-4 income_tax regs as amended by t d 2008_2_cb_323 a written declaration not on the form designated by the irs must con- form to the substance of that form and must be a document executed for the sole purpose of serving as a written declaration under this section a court order or decree or a separation agreement may not serve as a written declaration verdate nov jun jkt po frm fmt sfmt v files bound vol without crop marks b v armstr dec jamie armstrong v commissioner ii the insufficiency of a custodial parent’s conditional release we assume here that ms delaney’s signature on the date order constitutes in effect her declaration that she would comply with the order therefore the critical ques- tion is whether by declaring that she would comply with the date order ms delaney thereby declared that she will not claim c e as a dependent in that date order did not provide unconditionally that ms delaney would not claim a dependency_exemption deduction for c e or that she must sign form_8332 rather the order unambiguously stated that her obligation to sign the release-and mr armstrong’s right to the exemption- was conditional upon mr armstrong’s payment of child sup- port this child_support requirement appears nowhere in sec_152 of course but the state court order affirmed this obligation in four ways by providing- that mr armstrong would obtain the exemption and that ms delaney would release it only as long as the father is current with his child_support obligation that entitlement to the exemption would require first a determination of whether or not the father is current that ms delaney would release her claim only if pay- ments are current and that an exemption might be lost by failure to be cur- rent emphasis added that is mr armstrong would not obtain the exemption-and ms delaney was not obligated to release it-if mr arm- strong was not current with his child_support obligation in because the year at issue is this case is not governed by current c f_r sec_1_152-4 income_tax regs as amended by t d c b pincite effective for tax years starting after date that regulation states that the written declaration must be an unconditional release of the custodial parent’s claim to the child as a dependent for the year or years for which the declaration is effective a declaration is not unconditional if the custodial parent’s release of the right to claim the child as a dependent requires the satisfaction of any condition including the noncustodial parent’s meeting of an obligation such as the pay- ment of support the statute itself does provide a support criterion that must be satisfied before a noncusto- dial parent may claim the dependency_exemption deduction the first of the four criteria listed above is that the child must receive over one-half of his support from his parents without any distinction between the custodial_parent and the noncustodial_parent see sec_152 the statute does not condition a noncustodial parent’s entitlement to the exemption on his ful- fillment of child_support_obligations rather under the statute the noncustodial_parent may ob- tain the dependency_exemption deduction as long as the parents together support the child the child was in the custody of one or both of them for the year the custodial_parent executes a proper declaration and the noncustodial_parent attaches that declaration to his return verdate nov jun jkt po frm fmt sfmt v files bound vol without crop marks b v armstr dec jamie united_states tax_court reports that case the exemption was lost to mr armstrong not- withstanding the other terms of the order by signing the order ms delaney effectively declared circumstances under which she would not release her claim but would instead report herself to be entitled to the dependency_exemption for c e therefore in signing and assenting to the order ms delaney did not declare that she will not claim such child as a dependent instead she thereby declared that she will not claim c e as a dependent if mr armstrong keeps cur- rent with support payments but she also thereby unambig- uously declared that if he does not keep current then she will claim the child as a dependent this makes her declara- tion quite different from a declaration that she will not claim such child as a dependent for the year at issue sec_152 and to that extent her conditional declaration is at odds with the statute since only a release that is unconditional conforms to the substance of form thomas v commissioner tcmemo_2010_11 slip op pincite of course mr armstrong can point to the stipulated fact that although the state court order was conditional he ful- filled the condition he did keep current with his support obligations so that under the terms of the order he was entitled to the exemption deduction and ms delaney was obliged to execute the release the question here however is not what he was entitled to under the state court order but what he is entitled to under sec_152 see 114_tc_184 although the permanent orders granted the noncustodial_parent the right to claim the dependency_exemptions for his chil- dren a state court cannot determine issues of federal tax law aff ’d on other grounds sub nom 293_f3d_1208 10th cir the drafters of sec_152 removed from the equation the issue of proving support by the noncustodial_parent the statute requires a declaration that the custodial_parent will not claim the child sec_152 emphasis added and where as here the noncustodial_parent uses a substitute for form_8332 from which the statutorily mandated declaration is missing and the custodial_parent declares instead that she may or may not claim the child that defect is not cured by the noncustodial parent’s proof that he has fulfilled support verdate nov jun jkt po frm fmt sfmt v files bound vol without crop marks b v armstr dec jamie armstrong v commissioner conditions beyond those in the statute see brissett v commissioner tcmemo_2003_310 compliance with terms of separation agreement not sufficient to authorize depend- ency exemption deduction without attaching valid form_8332 or equivalent the record in this case illustrates the commonplace that custody and support orders are amended from time to time and we have observed that the internal_revenue_service cannot be expected to police divorce decrees and separation agreements or determine taxpayer compliance therewith see gessic v commissioner tcmemo_2010_88 slip op pincite moreover support obligations will sometimes consist of more than stated amounts of monthly payments a support obligation may for example include health insurance cov- erage the varying cost of which will in turn affect the amount of the cash payment otherwise due from the non- custodial_parent the question whether the noncustodial_parent has fulfilled his obligations though apparently easy in this instance may be difficult and controversial in others if that question had to be answered before one could deter- mine the proper claimant of the dependency_exemption deduction then sec_152 would fail of its purpose as we explained in miller v commissioner t c pincite congress added the written declaration requirement to sec_152 in to provide more certainty to the often subjective and difficult problems of proof and substan- tiation that accompanied dependency_exemption deduction disputes under the prior statutory scheme h_r rept no part pincite u s c c a n any rule by which mr armstrong could prevail here would require us to revert to resolving those difficult prob- lems of proof and substantiation that we were supposed to leave behind with the prior scheme we therefore hold that under sec_152 c e is not a qualifying_child of mr arm- strong for tax_year and as a result mr armstrong is the 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 pro- vide 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 re- solved without the involvement of the internal_revenue_service h_r rept no part pincite9 u s c c a n verdate nov jun jkt po frm fmt sfmt v files bound vol without crop marks b v armstr dec jamie united_states tax_court reports not entitled to the dependency_exemption deduction for c e for mr armstrong’s case is quite sympathetic he was up to date on his child_support and under the state court order ms delaney was obliged to sign form_8332 and release the exemption deduction to him we are obligated however to follow the statute as written whether the resulting dis- advantage is as here suffered by a noncustodial_parent who bore the burden of child_support but did not receive an executed form_8332 or whether the disadvantage is suffered by a custodial_parent who executed a form_8332 but then bore an undue and unintended burden of child_support iii child_tax_credit a taxpayer is entitled to a child_tax_credit for each quali- fying child as defined in sec_152 who has not reached the age of sec_24 c given our determination that under sec_152 c e is not a qualifying_child of mr armstrong for the year at issue it follows that mr arm- strong is not entitled to a child_tax_credit for c e for that year iv accuracy-related_penalty a general principles sec_6662 and b and imposes an accuracy- related penalty of of the portion of the underpayment_of_tax that is attributable to the taxpayer’s negligence or dis- regard of rules or regulations or that is attributable to any substantial_understatement_of_income_tax by definition an understatement of income_tax for an individual is substantial if it exceeds the greater of dollar_figure or of the tax required to be shown on the return sec_6662 since the defi- ciency here is only dollar_figure there was no substantial under- statement and the armstrongs are liable for the penalty only if claiming the dependency_exemption deduction for c e amounted to negligence under sec_7491 the commissioner bears the burden of production and must produce sufficient evidence that the imposition of the penalty is appropriate in a given case once the commissioner meets this burden the taxpayer must come forward with persuasive evidence that the commis- verdate nov jun jkt po frm fmt sfmt v files bound vol without crop marks b v armstr dec jamie armstrong v commissioner sioner’s determination is incorrect rule a 116_tc_438 for purposes of sec_6662 the term negligence includes a failure to exercise ordinary and reasonable care in the preparation of a tax_return sec_1_6662-3 income_tax regs negligence is defined as a lack of due care or failure to do what a reasonable and ordinarily prudent person would do under the circumstances 85_tc_934 the term disregard includes any careless reckless or intentional disregard of the rules or regulations sec_6662 a taxpayer who is otherwise liable for the accuracy-related_penalty may avoid the liability if he successfully invokes one of two defenses pertinent here first sec_6662 provides that an understatement attributable to an item may be reduced where the relevant facts affecting the item’s treatment were adequately disclosed on his tax_return and the taxpayer had a reasonable basis for his treatment of that item second sec_6664 provides that if the taxpayer shows first that there was reasonable_cause for a portion of an underpayment and second that he acted in good_faith with respect to such portion then no accuracy-related pen- alty shall be imposed with respect to that portion b application to this case having kept up to date on his child_support mr arm- strong knew that under the state court order he was enti- tled to receive ms delaney’s release of the exemption for c e and to claim the dependency_exemption deduction for himself and he was indeed so entitled under that order he had in his possession a copy of one version of the court order to that effect that bore ms delaney’s signature court orders can sometimes suffice as an equivalent to form_8332 and since he lacked the form_8332 to which he was entitled mr armstrong attached to his tax_return a copy of a prior iteration of that order-ie the arbitration award the arbitration award like the later court order explicitly dis- closed the conditionality of ms delaney’s obligation to give another potential defense does not appear to be implicated here sec_6662 pro- vides that an understatement may be reduced where the taxpayer had substantial_authority for his treatment of any item giving rise to the understatement there is no authority that can be cited in support of the armstrongs’ claim founded on ms delaney’s conditional release verdate nov jun jkt po frm fmt sfmt v files bound vol without crop marks b v armstr dec jamie united_states tax_court reports him the release and the absence of her signature on that version of the document was evident on these facts we do not think that the commissioner has borne his burden to show negligence we do not believe that mr armstrong a truck driver was sufficiently experienced in tax_accounting and law such that he would realize that entitlement under the state court order to ms delaney’s release did not necessarily mean entitlement under sec_152 to the dependency_exemption deduction a distinction that might not occur to many taxpayers moreover if the armstrongs’ reporting position had amounted to negligence we think either or both of the defenses described above would excuse them from penalty on the facts of this case first regarding sec_6662 the facts underlying the government’s position were cer- tainly disclosed on the tax_return by the attachment of the arbitration award and although ms delaney’s release did not satisfy sec_152 it was not unreasonable for mr armstrong to believe that it did second regarding sec_6664 whether the taxpayer acted with reasonable_cause and in good_faith depends on the pertinent facts and circumstances including his efforts to assess his proper tax_liability and his knowledge and experi- ence c f_r sec_1_6664-4 income_tax regs the state court order and his compliance with it constituted reasonable_cause to someone in his circumstance and nothing in the record of this case suggests anything other than that he acted in good_faith therefore although we hold in favor of the commissioner with regard to the tax_deficiency we hold in favor of the armstrongs with regard to the penalty decision will be entered for respondent with regard to the deficiency and for peti- tioners with regard to the accuracy-related_penalty reviewed by the court thornton colvin foley gale marvel goeke wherry kroupa paris morrison and kerrigan jj agree with this opinion of the court verdate nov jun jkt po frm fmt sfmt v files bound vol without crop marks b v armstr dec jamie armstrong v commissioner goeke j concurring the opinion of the court narrowly focuses on the conditionality of the date order in determining that the document was insufficient to satisfy the sec_152 custodial_parent release exception the opinion of the court’s analysis is cogent and accurate how- ever a noncustodial_parent may validly claim a sec_152 dependency_exemption only if he or she attaches such writ- ten declaration to the noncustodial parent’s return for the taxable_year beginning during such calendar_year sec_152 emphasis added petitioners surrendered the date order during audit of their tax_return clearly then petitioners did not attach the relevant docu- ment to their return although the opinion of the court considers the date order it acknowledges that- the commissioner also argues that the armstrongs are unable to show compliance with the fourth criterion-ie attach ing such written dec- laration to the noncustodial parent’s return sec_152 -since the armstrongs attached to their tax_return only the date arbitration award and not the date court order that ms delaney actually signed since we are able to resolve the case on the basis of the third cri- terion ie conditionality we need not and do not reach this fourth cri- terion see op ct note the dissent however addresses this issue that the opinion of the court explicitly avoids the dissent offers that the term attach as used in the statutory scheme is properly defined as associated with or connected to by attribution accordingly the dissent effectively submits that all relevant documents are attached to a taxpayer’s return irrespective of any temporal considerations relating to the point at which those documents were tendered to the commissioner any such interpretation is contrived and devoid of context the dissent’s proffered secondary definitions of attach are not as suggested all plain meanings that vary so widely see dissenting op p but rather are figurative extensions of its plain literal meaning to fasten see id pp note the plain meaning of a statute is the literal meaning of its words and unless it is unreasonable to do so we should prefer the plain and literal meaning of a statutory term see 489_us_235 the plain meaning of legislation should be conclusive except in the ‘rare cases in which the literal verdate nov jun jkt po frm fmt sfmt v files bound vol without crop marks b v armstr dec jamie united_states tax_court reports application of a statute will produce a result demonstrably at odds with the intentions of its drafters ’ alteration in original quoting 458_us_564 if secondary figurative definitions could claim plain meaning status then congress would have to frequently qualify its chosen language with the adverb literally to foreclose the dissent’s interpretive method we should reject any such artificial complication of the code and instead employ a traditional consistent and pragmatic approach to statutory interpretation indeed a cursory reading of the numerous sec_152 cases decided by this court reveals that we have uniformly held that the form_8332 or similar document should be affixed to the return at issue see eg chamberlain v commissioner tcmemo_2007_178 tax ct memo lexi sec_181 at brissett v commissioner tcmemo_2003_310 tax ct memo lexi sec_311 at in the seminal dependency_exemption case of this court 114_tc_184 aff ’d sub nom 293_f3d_1208 10th cir we prefaced our discussion of whether a divorce document quali- fied as a statement conforming to the substance of form by specifically finding that the taxpayer attached the document to his return however if we were to accept the position of the dissent in the present case this prelude would be irrelevant as apparently all documents which are sub- mitted to the commissioner at some indeterminate point may be appropriately considered by the court furthermore while the dissent endeavors to manipulate attach to the seemingly plain meaning of the term accommodate the expanding electronic tax_return filing regime we are presented with no reason to do so in this case petitioner physically filed his individual tax_return for tax- able year and our focus should appropriately narrow to those particular facts instead by approaching this present matter in a side opinion we risk complicating our tax laws by implication indeed the dissent’s mere suggestion that the term attach is subject_to different interpretations may have unintended and far-reaching consequence see dissenting op note finding current code references to attach or attachment the onus of harmonizing the statutory scheme verdate nov jun jkt po frm fmt sfmt v files bound vol without crop marks b v armstr dec jamie armstrong v commissioner with nonstatutory changes in effective administrative proce- dure falls upon congress and not this court we must be both circumspect and judicious in avoiding a manufactured ambiguity in our tax laws the deliberate use of the word attached in the context of sec_152 was intended to prescribe a contemporaneous affixation requirement we have so held before thornton gale marvel wherry kroupa gustafson and morrison jj agree with this concurring opinion holmes j dissenting mr armstrong promised to pay child_support to his ex-wife ms delaney ms delaney agreed to let him claim the dependency_exemption for one of their two children if he did mr armstrong paid the child_support on time and in full throughout ms delaney refused to sign the required irs form that would have proved his claim the commissioner then rejected his claim even though mr armstrong had attached a copy of the arbitration award spelling out the deal to his return mr arm- strong later produced undisputed evidence-a state-court order-that ms delaney had signed off on the agreement to give him the right to claim the exemption and that he had kept his promise to pay support that state-court order specified that as long as mr arm- strong kept current with child_support he shall have the tax exemption for his minor child c e it also mandated that ms delaney shall provide mr armstrong an executed irs form for every year he was entitled to the exemption even though mr armstrong kept his promise and paid his child_support ms delaney did not keep her part of the deal and never gave him an executed form_8332 the first ques- tion here is whether that state-court order that ms delaney did sign conform s to the substance of form_8332 see sec_1_152-4t a q a-3 temporary income_tax regs fed reg date the opinion of the court agrees with the commissioner that it doesn’t i don’t take the same view verdate nov jun jkt po frm fmt sfmt v files bound vol without crop marks b v armstr dec jamie united_states tax_court reports i conditionality divorce decrees and separation agreements often transfer the right to a dependency_exemption from one parent to another they also very often make that transfer condi- tional-usually as in this case on the timely payment of child_support yet the question of whether such conditional language makes it impossible to use that decree or agree- ment as a custodial parent’s written declaration that such custodial_parent will not claim such child as a dependent sec_152 is not one that has been ana- lyzed by any circuit_court or even before today answered by our court in a precedential opinion it is one that a number of our memorandum opinions have touched on the majority says it is obligated to follow the statute as written see op ct p and concludes that allowing mr armstrong to take the dependency_exemption based on a state-court order containing even an unambiguous condition is at odds with the statute id p i agree that we must follow the statute as written but what does the statute mean the question presented is does language in a state-court decree that noncustodial x shall have the exemption for c e as long as he is current with his child_support obligation for the tax_year involved conform to the substance of form 8332’s and sec_152’s requirement for a written declara- tion from custodial y that she will not claim such child as a dependent for any taxable_year beginning in such calendar_year translated into english the question is whether ms delaney’s signed promise that mr armstrong shall have the exemption for c e if he’s current with his child_support is a promise not to claim the exemption herself now obviously it is-but it’s a conditional promise the rest of the court reasons thusly sec_152 requires a custodial parent’s dec- laration that she ‘will not claim’ the child as a dependent see op ct p citing sec_152 this statement is unconditional see id i n order for a document to comply with the substance of form_8332 and ultimately sec_152 the declara- tion on the document must also be unconditional see id verdate nov jun jkt po frm fmt sfmt v files bound vol without crop marks b v armstr dec jamie armstrong v commissioner the language in mr armstrong’s form is conditional see id p and therefore mr armstrong’s form does not conform to the substance of form_8332 and sec_152 see id p what has just happened is an assumption of the conclu- sion-the conclusion to be proved is assumed to be the case in the third bullet point and on page of the court’s opinion this is not a promising way to construe the language of the code and regulations i would look at the problem altogether differently-this question being one where a page of history is worth a volume of logic see 256_us_345 but to gain a better understanding of the law in effect for the year at issue i would begin in the present as the majority notes the commissioner would almost certainly win on the condition- ality question here if current sec_1_152-4 income_tax regs as amended by t d 2008_2_cb_323 applied that regulation states i in general -the written declaration must be an unconditional release of the custodial parent’s claim to the child as a dependent for the year or years for which the declaration is effective a declaration is not unconditional if the custodial parent’s release of the right to claim the child as a dependent requires the satisfaction of any condition including the noncustodial parent’s meeting of an obligation such as the payment of support ii form designated by irs -a written declaration may be made on form_8332 a written declaration not on the form designated by the irs must conform to the substance of that form and must be a document executed for the sole purpose of serving as a written declaration under this section a court order or decree or a separation agreement may not serve as a written declaration id see also sec_1_152-4 examples income_tax regs as amended by t d c b pincite whether this regulation would survive review is a question for a later day although the sec- retary may well have legitimate reasons for limiting the scope of what can serve as a written declaration he must do so in a rational way see judulang v holder u s ll ll 132_sct_476 allowing a custodial spouse to unilaterally revoke a noncustodial spouse’s legal right to claim a dependency exemption-by refusing to sign a form 8332-raises a serious question about the regulation’s validity under an arbitrary-and-capricious standard that the regulation saves time and money won’t necessarily salvage an arbitrary agency policy see id at ll s ct pincite verdate nov jun jkt po frm fmt sfmt v files bound vol without crop marks b v armstr dec jamie united_states tax_court reports as the majority acknowledges however see op ct note and note this regulation does not apply for the tax_year see sec_1_152-4 income_tax regs as amended by t d c b pincite that means that we have to figure out what the law was before the regulation apart from our caselaw the first hint that conditions would make a taxpayer’s right to claim a dependency exemp- tion ineffective came from a date revision to form_8332 in the g eneral i nstructions for a p ost-1984 decree or agreement the commissioner noted if the divorce decree or separation agreement went into effect after the noncustodial_parent can attach certain pages from the decree or agree- ment instead of form_8332 to be able to do this the decree or agreement must state the following the noncustodial_parent can claim the child as a dependent without regard to any condition such as payment of support form as revised date but neither irs forms nor their instructions are binding authority see eg 129_tc_175 the use of such a form to create substantive tax law also creates serious administrative-law problems see administrative_procedure_act u s c sec_553 in any event not long after this revision the secretary issued a notice of proposed rulemaking to change sec_1_152-4 income_tax regs and incorporate provisions of sec_1_152-4t temporary income_tax regs supra see notice of proposed rulemaking fed reg date the notice stated that changes to the regulation would in part be made to provide guidance on issues that have arisen in the administration of sec_152 id fed reg pincite3 one of these proposed changes further provide d that a written declaration must include an uncondi- tional statement that the custodial_parent will not claim the child as a dependent for the specified year or years a statement is unconditional if it does not expressly condition the custodial parent’s waiver of the right to claim the child as a dependent on the noncustodial parent’s meeting of an obligation such as the payment of support id the secretary received a comment arguing that a divorce settlement agreed to by both parents should still be able to serve as a standalone declaration see t d 2008_33_irb_323 he responded that requiring a form_8332 or a verdate nov jun jkt po frm fmt sfmt v files bound vol without crop marks b v armstr dec jamie armstrong v commissioner document specifically executed for that purpose improves tax_administration and reduces controversy see id pincite to be sure these are laudable goals but this sort of rule-crafting is his domain not ours cf judulang v holder u s ll ll 132_sct_476 rejecting govern- ment assertion that regulation saves time and money in invalidating an arbitrary agency policy what’s telling about his actions and relevant to the analysis of the state of the law before sec_1_152-4 income_tax regs as amended by t d 2008_33_irb_323 is that the sec- retary believed he needed to redraft his regulation to ban conditionality but was he correct a congress’s and the commissioner’s views of conditions i would begin by noting that all noncustodial parents’ claims to exemptions for their children used to be condi- tional-conditional on the parent’s providing more than half the support for the child during the tax_year see sec_152 as in effect before the act of date pub_l_no sec_2 stat pincite this set up enormously involved bat- tles between former spouses about who spent how much and for what and on whom and congress finally came to our court’s relief after noticing that nearly five percent of all income-tax cases were of this type see h_r rept no 1967_2_cb_590 congress’s first attempt at a solution was to add sec_152 to allow parents to allocate exemptions in a divorce decree or separation agreement see act of date sec_1 stat pincite it gave a noncustodial_parent the dependency_exemption if the divorce decree or separation agreement awarded him the exemption and he provided the child at least dollar_figure of support in any given tax_year the overriding purpose of the change was to provide certainty to the parties 74_tc_1 citing s rept no u s c c a n and h_r rept no supra see also s rept no supra u s c c a n pincite t he bill amend s present law to provide a set of rules under which the dependency_exemption issue may be resolved on a basis that is more satisfactory to the parents and which verdate nov jun jkt po frm fmt sfmt v files bound vol without crop marks b v armstr dec jamie united_states tax_court reports will alleviate the current administrative burden yet con- gress still made the irs’s respect for that allocation condi- tional on the noncustodial parent’s providing at least dollar_figure in child support-a condition that would allow the kind of agreement mr armstrong had with ms delaney see act of date sec_1 stat pincite the legislative his- tory of sec_152 says that this would allow state courts hearing divorce and separation suits to resolve the depend- ency exemption issue in many cases at the time they are considering the financial arrangements which are to apply between the parents and to take the income_tax deduction directly into account in this connection s rept no supra pincite congress also provided a second method for a noncustodial_parent to get the exemption he could show that he spent at least dollar_figure on the child but only if the custodial_parent could not clearly establish that she spent more on that child see id pincite our caselaw interpreting that version of sec_152 con- firmed that conditionality in a separation agreement or a divorce decree did not prevent a noncustodial_parent from claiming the dependency_exemption see flatt v commis- sioner tcmemo_1986_495 wl w here a divorce agreement conditions the claim for dependency_exemptions upon the performance of specific obligations it is appropriate for this court to determine if in fact the party obligated to meet such conditions has fully complied flautt v commissioner tcmemo_1983_172 wl analyzing whether noncustodial_parent had fulfilled the conditions of a separation agreement in deciding whether he qualified for dependency_exemption under sec_152 the second method by which the noncustodial_parent could claim the exemption however proved exceptionally conten- tious see eg justin s holden the domestic relations tax act of r i b j under prior_law the tax_court was the scene of literally thousands of trials to determine whether mom or pop was entitled to the dollar_figure exemption for little johnny this spurred congress to substantially revise sec_152 in the deficit_reduction_act_of_1984 defra pub_l_no sec_423 stat pincite during that overhaul congress collapsed the two exceptions into one verdate nov jun jkt po frm fmt sfmt v files bound vol without crop marks b v armstr dec jamie armstrong v commissioner sec_152 dependent defined e support_test in case of child of divorced parents etc - exception where custodial_parent releases claim to exemp- tion for the year -a child of parents described in paragraph 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 tax- able 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 sec_152 as amended by defra sec_423 congress eliminated the troublesome dollar_figure-but-more-than- your-ex spending test but grandfathered for divorce decrees already in effect the old allocation-in-the-decree-plus-prove- more-than-dollar_figure-in-child-support test see sec_152 as amended by defra sec_423 law then in place were as the majority notes see op ct note congress’s pur- pose in making these changes was to provide more certainty by allowing the custodial spouse the exemption unless that spouse waives his or her right to claim the exemption h_r rept no part pincite u s c c a n congress wanted more certainty because aspects of the often subjective and present ed difficult problems of proof and substantiation id pincite u s c c a n pincite the majority takes this language and says it was aimed at banking the fires from parents fighting over the first method the allocation-in- the-decree-plus-prove-more-than-dollar_figure test that we were having to extinguish see op ct p note but look at the very next sentence from the house report congress emphasized instead that t he internal_revenue_service becomes involved in many disputes between parents who both claim the dependency_exemption based on providing support over the applicable thresholds h_r rept no part supra pincite u s c c a n pincite emphasis added this language means congress was pointing its fire extinguisher at disputes under the second method not the first in other words congress’s concern verdate nov jun jkt po frm fmt sfmt v files bound vol without crop marks b v armstr dec jamie united_states tax_court reports leading up to the sec_152 amendments was with the yearly contests between parents on how much they spent on their kids not on conditional transfers of exemptions indeed our caselaw has said as much see caputi v commissioner tcmemo_2004_283 wl at noting-without mentioning the first test-that the dollar_figure-plus-who-spent-more-on-the-child the internal_revenue_service irs in the middle of conflicts between parents that were ‘often subjective and presented difficult problems of proof and substantiation’ quoting h_r rept no part supra pincite u s c c a n pincite put test congress expected that the requirement of getting a dec- laration would increase the probability that noncustodial par- ents would keep current in their payment of child_support the declaration may be made by the custodial spouse annually in order to better insure the receipt of child_support payments see h_r rept no part supra pincite u s c c a n pincite see also rodney v nutt note tax law-the amendment to sec_152 did congress intend to preempt a state court’s authority to allocate the dependent_child exemption w new eng l rev noting state supreme court’s anal- ysis that sec_152’s legislative_history seemed to show congressional desire to enable a custodial_parent to use the dependent_child exemption as an inducement for paying child_support roland l hjorth divorce taxes and the tax reform act an inadequate response to an old problem wash l rev suggesting the yearly approach as an enforcement mechanism for the custo- dial parent james a rodenberg allocating federal_income_tax dependency_exemptions in divorce decrees mo l rev suggesting same conditional language in a divorce decree-an agreement that the non- custodial_parent can claim dependency_exemptions if he pays the required child support-accomplishes the same end the annual declaration would seem to be little more than a receipt for the fulfillment of that legally binding original promise congress had a few years before enacted sec_6402 see omnibus budget reconciliation act of pub_l_no sec c stat pincite which requires the secretary to reduce the amount of a taxpayer’s refund by the amount of his delinquent support obligations verdate nov jun jkt po frm fmt sfmt v files bound vol without crop marks b v armstr dec jamie armstrong v commissioner there is nothing in this history that suggests congress thought it needed to end conditional transfers of exemptions or render them unenforceable at the whim of the custodial_parent it just wanted to end the yearly contests between parents on how much they spent on their kids-contests that had become the festivals of litigation a look at the internal_revenue_manual irm from around that time also shows the commissioner to be unconcerned with the conditionality of transferring exemptions shortly after congress enacted sec_6402 the irs developed a child_support refund offset program irm pt date as part of its procedures for administering sec_6402 the irs notified a taxpayer who was delin- quent on his child-support obligations but had nevertheless claimed the dependency_exemption that he may not have furnished the necessary support that would enable him to claim the dependent s shown on his return id pt date with its notice the irs enclosed a questionnaire that solicited information which might substantiate the taxpayer’s case see id if he provided this substantiation the irs had to allow the exemption id pt date b state courts’ use of conditions congress’s and the commissioner’s lack of concern over conditions such as payment of support isn’t surprising then as now several states allowed-or even required- courts to condition the allocation of dependency_exemptions on the noncustodial parent’s payment of child_support since at least for example florida has required a divorce court’s allocation of the dependency_exemption to be condi- tional upon the noncustodial parent’s payment of child sup- and send the difference to the state seeking to collect such obligations this provision-also aimed at getting child_support paid-has remained substantively unchanged to this day see sec_6402 the irm doesn’t carry the force of law 114_tc_533 ndollar_figure but we can use the irm as persuasive authority of the commissioner’s interpretation of the code to guide our own evaluation see id foreshadowing the discussion in the next section this part of the irm also speaks to the definition of attachment one section mentions a taxpayer submit ting a form pursu- ant to the irs’s request for documentation the taxpayer would need to submit a form_8332 only if he hadn’t already provided a declaration or a form_8332 with his filed return see irm pt date the irm required the taxpayer to substantiate his payment of child_support even if he submitted a form_8332 see id nothing in this irm part indicates that the irs would ignore a taxpayer’s late submission of a form_8332 verdate nov jun jkt po frm fmt sfmt v files bound vol without crop marks b v armstr dec jamie united_states tax_court reports port see fla sess law serv ch h b sec_1 west currently codified at fla stat ann sec_61 a west alaska has had a similar law in place since see alaska sess laws ch h b sec currently codified at alaska stat ann sec_25 a west and colorado as well since at least see colo legis serv h b sec_1 west currently codified at colo rev stat ann sec lexisnexi sec_2012 these states are by no means outliers in states that have such a requirement the major- ity’s holding will allow a custodial spouse who refuses to sign a form_8332 in violation of a divorce decree or separation agreement to unilaterally prevent a noncustodial spouse from otherwise lawfully claiming a dependency_exemption i think it reasonable to conclude that our holding today will upset expectations settled under state law it is as if a res- taurant could defeat a taxpayer’s deduction for a business dinner by not giving him a receipt even if he showed us the bill and a credit-card statement that showed he paid it the rest of the court reasons that the purpose of sec_152’s declaration requirement was to ease the irs’s burden of enforcement but i would conclude that there is nothing in the history of defra’s language or apparent purpose to sug- gest congress had concluded that conditioning an exemption transfer on payment of child_support was too difficult to enforce what we have-a widely followed approach in terms of state statutory law on the subject-suggests that the custodial-parent-declaration system was a low-cost and more certain way of enforcing a noncustodial parent’s support obligations not a trap for the unwary noncustodial_parent both indiana and minnesota also require the allocation of the dependency_exemption to a noncustodial_parent to be conditioned on the payment of child_support ind code ann sec d lexisnexis supp biscoe v biscoe n w 2d minn ct app similarly in louisiana the courts cannot allocate the dependency_exemption to a non- custodial_parent if there are any outstanding child_support payments owed to the custodial par- ent la rev stat ann sec b a though to my knowledge no court has yet ruled on the issue louisiana’s statute could be broadly read to require the noncustodial_parent to stay current on his support obligation in order to keep the exemption see id notably i have found no state that disallows conditioning the allocation of the dependency_exemption on the noncustodial_parent staying current on his support obligations commentators have noted that just telling noncustodial parents in this situation that their remedy lies in asking a state court to order an offsetting reduction in future support if the custo- dial parent refuses to fill out a form_8332 would cause collateral damage to the minor children who are supposed to benefit from that support see james a rodenberg allocating federal_income_tax dependency_exemptions in divorce decrees mo l rev verdate nov jun jkt po frm fmt sfmt v files bound vol without crop marks b v armstr dec jamie armstrong v commissioner like mr armstrong who dutifully fulfills them see nutt supra pincite but see hjorth supra pincite acknowl- edging the potential for mr armstrong’s problem c post-defra caselaw regarding conditions so what happened with our caselaw after the amend- ments and after flatt and flautt which both signaled approval of looking at whether a noncustodial_parent fulfilled the conditions in a separation agreement to decide whether he qualified for a dependency_exemption here again there’s another page of history to read it starts with the memorandum opinion white v commissioner tcmemo_1996_438 wl in white a divorce decree enti- tled the noncustodial_parent to claim the two children of the marriage as his beneficiaries for income_tax purposes and required the custodial_parent to execute whatever docu- ments were necessary to enable the noncustodial_parent to claim dependency_exemptions for the children id wl at the custodial_parent then signed a letter saying that the noncustodial_parent was indeed entitled to claim the two children of the marriage as his bene- ficiaries for income_tax purposes id we held however that the noncustodial_parent couldn’t take the dependency exemp- tion because the letter didn’t conform to the substance of form_8332 id at but why we first noted that the letter failed to state the years for which the custodial_parent was releasing the claims for exemption and also failed to state the social_security numbers for both parents-both require- ments under the applicable regulation id we then stated- most importantly -that the letter failed to explicitly state that the custodial_parent would not claim either of the two children as her dependent id we went on to note that- although the divorce decree said that the noncustodial_parent was entitled to the dependency exemptions- s tate courts by their decisions cannot determine issues of federal tax law id it’s often hard to glean exactly what elements are essential to a taxpayer’s case when he loses for several different rea- sons this is a part of tax law where a great many working- and middle-class parents try to represent themselves and are usually not very good at researching the development of verdate nov jun jkt po frm fmt sfmt v files bound vol without crop marks b v armstr dec jamie united_states tax_court reports caselaw and distinguishing one precedent from another this almost guarantees some problems in reaching consistent results we have held somewhat contrary to white that the social_security numbers of the parents-one of the blanks to fill in on a form 8332-are not essential to its substance bramante v commissioner tcmemo_2002_228 wl at we have also held somewhat consist- ently with white that not listing which tax years the custo- dial parent is surrendering-another blank on that form-is fatal see santana v commissioner tcmemo_2012_49 wl at briscoe v commissioner tcmemo_2011_165 wl at but the really striking aspect of white is its statement- s tate courts by their decisions cannot determine issues of federal tax law -that implies that even a divorce decree that unconditionally transfers exemptions to the noncustodial_parent isn’t good enough white wl at although the majority repeats this sweeping generaliza- tion see op ct pp even this part of white’s holding seems not to have survived fully intact in another memorandum opinion boltinghouse v commissioner tcmemo_2003_134 wl at we held without acknowledging white that a state-court separation agreement did conform to the substance of form_8332 like the agreement in white the agreement in boltinghouse was an unconditional transfer id at the important factor this is a very broad generalization-state-court divorce decrees allocate rights between par- ents the characterization of those rights for federal tax-law purposes remains a federal ques- tion see eg 472_us_713 but many states and commentators view the allocation of tax exemptions as very much one of the items that state courts can and do regulate see robert g nassau how to split the tax baby what would solomon do syracuse l rev see also rodenberg supra pincite c ourts routinely used their powers to allocate the exemption in divorce decrees and for many decades the code expressly allowed state courts to allocate exemptions as it still does for pre-1985 arrangements see sec_152 a more precise formulation therefore is that a state-court allocation of federal-tax exemptions between divorced parents can’t bind the commis- sioner the majority quotes a t c opinion see 114_tc_184 a state court cannot determine issues of federal tax law aff ’d on other grounds sub nom 293_f3d_1208 10th cir miller itself relied on white when it made that statement and it was not at all essential to our holding in miller the noncustodial_parent attached to his return a state-court order that unconditionally allocated to him the de- pendency exemptions for both of his children that order however wasn’t signed by the custo- dial parent we held that the lack of a signature was the fatal flaw determining that s imply attaching a state court order that is not signed by the custodial_parent to the return of the noncustodial_parent does not satisfy the express statutory requirements of sec_152 id miller’s statement regarding state-court determinations-besides being a broad generaliza- tion-would seem to be dictum verdate nov jun jkt po frm fmt sfmt v files bound vol without crop marks b v armstr dec jamie armstrong v commissioner boltinghouse said was that there was no ambiguity about what years were covered see id at see also eg loffer v commissioner tcmemo_2002_298 wl at signed divorce decree might suffice but not one that doesn’t specify which children or tax years are cov- ered ambiguity alone-not the use of a state-court agree- ment and not the presence or absence of social_security numbers-is enough to distinguish boltinghouse from white the majority however uses boltinghouse for an entirely different reason-citing it as support for its holding requiring a declaration to be unconditional for a noncustodial_parent to claim the dependency_exemption see op ct p i’m hesi- tant however to glean that principle from boltinghouse because conditionality was not at issue there we focused instead on whether the agreement conformed to the sub- stance of form_8332 even though it didn’t explicitly state the years for which the dependency_exemptions were to be released boltinghouse’s holding didn’t rely upon the unconditional nature of the transfer and never appeared to hint that the absence of conditionality was a prerequisite for a declaration to conform to the substance of form_8332 despite that context our caselaw began to frequently cite boltinghouse as a prohibition of using divorce decrees with conditional clauses as substitutes substantially in the same form as forms in thomas v commissioner tcmemo_2010_11 wl we said the dictum from boltinghouse stood for the rule that only a release that is unconditional conforms to the substance of form_8332 and meets the requirements of sec_152 thomas wl at the next case to take its inspiration from the uncondi- tional language in boltinghouse was gessic v commissioner tcmemo_2010_88 wl indeed the majority cites gessic to support its position that ‘the internal rev- enue service cannot be expected to police divorce decrees and the commissioner had also claimed in boltinghouse that the agreement didn’t conform to the substance of form_8332 because it didn’t include the social_security numbers of the parents wl at we flatly rejected that assertion as without merit id citing bramante v commissioner tcmemo_2002_228 wl which held that the omission of a custodial parent’s social_security_number on a declaration didn’t invalidate the release but see thomas v commissioner tcmemo_2010_11 wl at holding decree didn’t conform to the substance of form_8332 because-among other reasons-it didn’t contain parents’ social_security numbers verdate nov jun jkt po frm fmt sfmt v files bound vol without crop marks b v armstr dec jamie united_states tax_court reports separation agreements or determine taxpayer compliance therewith ’ see op ct p quoting gessic wl at i’d like to put some context around that statement gessic is another case where there were multiple problems with the noncustodial parent’s evidence including a failure to name the children involved id at but in the course of denying the exemption to the noncustodial_parent we distinguished boltinghouse as arising from an unconditional transfer id in gessic by contrast the transfer of exemp- tions was until such time as ms gessic returned to work full time and earned over dollar_figure per year id this was true as a factual matter and it was important because the conditional language in the gessics’ agreement created an ambiguity as to what tax years were applicable we could have added that full time and earned over dollar_figure per year are not at all clear in their meanings but to be sure we reasoned instead these terms might change from year to year such that petitioner’s entitlement to the dependency_exemptions for his children is potentially subject_to change each year id see also eg horn v commissioner tcmemo_2002_290 wl at rejecting transfer of exemptions conditioned on the transfer not interfer ing with the custodial parent’s ability to receive federal student aid but also for failing to identify years involved what i would take away from gessic and horn is that ambiguous terms in a divorce decree-terms with two or more possible meanings such as if it won’t interfere with the spouse’s ability to get federal student loans or until the spouse is working full time -are too indefinite a description of the years for which a custodial spouse is surrendering her children’s exemptions but ambiguity is not the same as conditionality and congress has expressly contemplated annual declarations to be a useful enforcement mechanism for timely payment of child_support and the states them- selves have been making and in some cases are required to make allocations of exemptions between divorcing spouses conditional on payment of child_support that leaves our nonprecedential caselaw from thomas i acknowledge it uses a parenthetical to describe boltinghouse as saying only a release that is unconditional conforms to verdate nov jun jkt po frm fmt sfmt v files bound vol without crop marks b v armstr dec jamie armstrong v commissioner the substance of form_8332 thomas wl at as explained earlier however conditionality was not at issue in boltinghouse its holding didn’t rely on the uncondi- tional nature of the transfer and it didn’t say that the pres- ence of conditionality in a declaration is a bar preventing it from conforming to the substance of form_8332 as the only habiliment with which thomas cloaked its reasoning was its citation of that dictum the origins of thomas’s reasoning had no firm foundation in the statute its legislative_history or a regulation in effect at that time i would not have given it any weight d whether the state-court order conforms to the sub- stance of form_8332 it’s important to remember here that the commissioner stipulated that mr armstrong met his condition-he in fact paid his child_support in full and on time when mr arm- strong satisfied that unambiguous condition_precedent ms delaney-according to the terms of the state-court order-did not have a choice as to whether she could claim the depend- ency exemption she categorically did not have a legal right to claim it the majority acknowledges that in this case it is easy to determine whether the noncustodial_parent satisfied the condition see op ct p but it says that it is concerned with other cases where determining the fulfillment of the condition may be difficult and controversial see id if a case in the future arises where an ambiguous condition again presents difficult problems of proof and substantiation we should speak to that issue at that time but that’s just not the case here we shouldn’t group mr armstrong in with those other difficult and controversial cases when his case has no such problems and we should definitely not hold that our conclusion is a plain-meaning construction by holding that mr armstrong is not entitled to the dependency_exemption the majority dishonors a state-court judgment ordering ms delaney not to claim the exemption let’s assume for a moment that the secretary promulgated a regulation that said-as an alternative to a form 8332-a noncustodial_parent can also satisfy sec_152 by attaching to his return a divorce decree separation agreement which allocates the exemption to him so long as he pays child_support and substantiation that he did in fact meet his child sup- port obligations under the majority’s reasoning that regulation would be invalid under step one of chevron which says the plain meaning of a statute overrides regulations to the contrary verdate nov jun jkt po frm fmt sfmt v files bound vol without crop marks b v armstr dec jamie united_states tax_court reports and to provide mr armstrong an executed irs form_8332 for the legislative_history of sec_152 explicitly acknowledges the important role state courts play in allo- cating the dependency_exemption via a court order and nothing in the legislative_history of the amendments suggests anything to the contrary the armstrongs are not deadbeats trying to game the system they are honest tax- payers caught in the difficulties attendant to divorce-dif- ficulties exacerbated by the lack of clear guidelines from the irs and this court because mr armstrong fulfilled the state court’s unambiguous condition to get the dependency exemp- tion for c e for i don’t think that condition should be used to block him from claiming it i would instead honor that state-court order as conforming to the substance of form_8332 ii attachment just because the armstrongs should win on conditionality doesn’t mean they necessarily can claim the dependency_exemption for c e the code also requires that the noncusto- dial parent attach the signed declaration to his tax_return see sec_152 sec_1_152-4t a q a-3 temporary income_tax regs supra as the majority notes although doesn’t resolve because of its holding regarding condition- ality see op ct note the commissioner argues that the armstrongs didn’t comply with the attachment requirement because they attached to their tax_return only the date arbitration award and not the date court order that ms delaney actually signed this immediately creates a problem for the armstrongs because only the arbitrator and neither ms delaney nor mr armstrong nor anyone like a lawyer who might have been empowered to act on their behalf signed this award and sec_152 requires a signed declaration this means that the unsigned arbitration award fails to transfer the dependency_exemption from ms delaney to the armstrongs if the record stopped here the armstrongs would lose see eg himes v commissioner tcmemo_2010_97 wl at holding an unsigned divorce decree is insufficient to transfer dependency exemp- tion neal v commissioner tcmemo_1999_97 wl verdate nov jun jkt po frm fmt sfmt v files bound vol without crop marks b v armstr dec jamie armstrong v commissioner at finding unsigned form_8332 insufficient to transfer dependency_exemption but-as has already been detailed-the record doesn’t stop here the armstrongs provided two additional relevant docu- ments to the commissioner during the examination of their tax_return including the child_support order that is at the core of the dispute over conditionality the commissioner says that the order fails-not only on the conditionality issue-but also because the armstrongs didn’t attach it to their return like the conditionality argu- ment the commissioner’s position regarding attachment has some support in our caselaw but not in any precedential opinion so as with the conditionality issue i would take a closer look sec_152 specifically commands that the non- custodial_parent attach such written declaration to the non- custodial parent’s return for the taxable_year this might seem to have an obvious meaning-at first glance attach might mean something like staple or bind with a paper clip or some other synonym connoting physically fasten judge goeke thinks so and in his concurrence says that this means the armstrongs c learly did not ‘attach’ the relevant document to their return see concurring op p but that’s not the only meaning of the word and in an age where the irs strongly encourages filers especially middle- income filers with relatively simple returns to file electroni- cally see internal revenue restructuring and reform act of pub_l_no sec_2001 sec_112 stat pincite establishing a goal for electronic_filing of at least of federal tax and information returns by i explore in more detail that simple word like any other word in the code we normally would give attach its plain meaning see 99_tc_506 aff ’d 15_f3d_970 10th cir according to webster’s third new international dictionary however attach has more than one connect place so as to belong as in through marriage he attached himself to the catholic faith to fasten itself as in though his resume omitted the details the sordid details of his embezzlement conviction were firmly attached to his reputation verdate nov jun jkt po frm fmt sfmt v files bound vol without crop marks b v armstr dec jamie united_states tax_court reports make fast or join as by string or glue as in with the driver side door no longer attached to his car bill found the heating unit wholly ineffective or to connect by attribution as in please see the attached word document it makes a big difference to the armstrongs if attach means physically fastened and not simply connected since the plain meanings vary so widely and lead to such different outcomes here i would look elsewhere for guidance since the meaning of the word attach isn’t plain i start with legislative_history which can be a good lexicographical source see 134_tc_211 halpern and holmes jj concurring in the result rev’d on other grounds 650_f3d_691 d c cir vacated and remanded u s ll 132_sct_2120 congress appears to have intended that w here one of the parents claims the deduction with respect to a child pursuant to a written_agreement between them the treasury depart- ment may require that reasonable substantiation of the exist- ence of the written_agreement be submitted with his tax_return h_r rept no pincite c b pincite emphasis added it also delegated authority to the sec- retary to issue regulations see id which he did in they provide that i n the case of a written_agreement between the parents which allo- cates the deduction to the noncustodial_parent the noncustodial_parent webster’s third new international dictionary is widely regarded as a descriptive dic- tionary-one that describes various word usages without prescribing any see phillip a rubin war of the words how courts can use dictionaries in accordance with textualist principles duke l j lexicographers still debate whether the descriptive approach taken by webster’s third is more appropriate than a prescriptive approach-one emphasizing the proper use of words-as employed by other respected dictionaries such as the american heritage dictionary see id pincite n for what it’s worth the two dictionaries track each other as to the meaning of attach the american heritage dictionary of the english language 5th ed in relevant part de- fines attach as to fasten secure or join as in attached the wires to the post to connect as an adjunct or associated condition or part as in many major issues are attached to this legislation to affix or append add as in attached several riders to the docu- ment to ascribe or assign as in attached no significance to the threat to bind by emotional ties as of affection or loyalty as in i am attached to my family and to adhere belong or relate as in very little prestige attaches to this position the supreme court has used dictionaries to provide potential meanings from which the court would select based on statutory purpose legislative intent common sense or some other contextual argument see note looking it up dictionaries and statutory interpretation harv l rev verdate nov jun jkt po frm fmt sfmt v files bound vol without crop marks b v armstr dec jamie armstrong v commissioner must attach to his return or amended_return a copy of such agreement which is applicable to the calendar_year in which the taxable_year of the noncustodial_parent begins sec_1_152-4 income_tax regs as amended by t d 1971_7_cb_45 emphasis added sec_152 and its regulations remained substantially unchanged until congress enacted defra in see defra sec_423 stat pincite as i detailed above congress col- lapsed two exceptions into one substituting more or less the language of sec_152 as it is today the secretary followed this lead and issued a new tem- porary regulation that reflected the changes to sec_152 q-3 how may the exemption for a dependent_child be claimed by a non- custodial_parent a-3 a noncustodial_parent may claim the exemption for a dependent_child only if the noncustodial_parent attaches to his her income_tax return for the year of the exemption a written declaration from the custodial_parent stating that he she will not claim the child as a dependent for the taxable_year beginning in such calendar_year the written declaration may be made on a form to be provided by the service for this purpose once the service has released the form any declaration made other than on the offi- cial form shall conform to the substance of such form sec_1_152-4t a q a-3 temporary income_tax regs supra one theme that emerges from this mixed history is that congress and the commissioner grew increasingly concerned about inefficiencies and uncertainties surrounding the dependency_exemption seeking to avoid expensive litigation where there was little tax revenue at stake h_r rept no part supra pincite u s c c a n pincite adopting the narrowest meaning of attaches -ie physically fastens to-would advance efficiency because the irs could for example decide to deny exemptions to every noncustodial_parent who efiled and there might be nothing a court could do about it and the fact that the term entered the code when the world wide web was little more than a pixel on timothy berners-lee’s mental monitor might mean taxpayers are stuck with a meaning of attaches as phys- ically fastens contemporaneously with filing but i think that there is a better reading congress itself referred to reasonable substantiation see h_r rept no pincite c b pincite emphasis added and the commissioner’s nod to amended verdate nov jun jkt po frm fmt sfmt v files bound vol without crop marks b v armstr dec jamie united_states tax_court reports return s indicates that the possibility of noncontempora- neous attachment has always existed see sec_1_152-4 income_tax regs as amended by t d c b pincite emphasis added this is especially suggestive because amended returns are not returns that the commissioner has to accept and are often little more than claims for a refund see 561_f2d_1115 4th cir no statutory mandate for commissioner to accept amended returns 65_tc_113 rejecting taxpayers’ argument that they have the right to file an amended_return sec_301_6402-3 proced admin regs properly executed amended_return treated as claim_for_refund and later congressional comments about the problems with old sec_152’s income-support thresh- olds and dueling claims about which parent provided the greater amount of support likewise undercut any conclusion that attaches had only a narrow meaning in see h_r rept no part supra pincite u s c c a n pincite this should make one reluctant to read attaches as having a plain meaning especially when doing so would deprive the secretary of discretion under the first step of chevron to adopt a broader reading and would put well-meaning but unsophisticated and unrepresented taxpayers at a great disadvantage but if the dictionary and legislative_history don’t compel a narrow reading and there is no regulation defining the word where else could one turn the code does not define attach and has few references to the term these sections unfortunately emit no more light than the legislative_history other code sections appear to give attach a variety of meanings some such as current sec_36 are quite strict sec_36 provides first-time homebuyers a credit for part of the purchase_price of their qualifying principal_residence subsection d specifies that n o credit shall be allowed to any taxpayer for any taxable_year if the tax- payer fails to attach to the return of tax for such taxable_year in the sense in which the word is used in sec_152 i can find only fifteen current code references to attach or attachment six in subtitle a see sec_36 sec_152 sec_170 and d h c b e one in subtitle b see sec_2001 and eight in subtitle f see sec_6038d sec_6103 sec_6114 sec_6213 sec_6501 sec_6611 sec_6662 sec_7477 verdate nov jun jkt po frm fmt sfmt v files bound vol without crop marks b v armstr dec jamie armstrong v commissioner a properly executed copy of the settlement statement used to complete such purchase sec_36 as amended by the worker homeownership and business assistance act of pub_l_no sec_12 sec_123 stat pincite emphasis added current sec_6213 allows the commis- sioner to summarily assess a tax_deficiency arising from a taxpayer’s failure to attach the settlement statement see sec_6213 g p iii as amended by the worker homeownership and business assistance act of sec_12 and while congress hasn’t further clarified sec_36’s attachment requirement the national_taxpayer_advocate in testimony before the senate finance com- mittee noted that sec_36’s requirement of upfront substantiation to get the first-time_homebuyer credit is burdensome and may reduce taxpayer participation see complexity and the tax_gap making tax compliance easier and collecting what’s due hearing before the s comm on fin 112th cong statement of nina e olson national_taxpayer_advocate likewise the date revision of the form given by the commissioner to claim the credit form_5405 first-time_homebuyer credit and repayment of the credit warns tax- payers about the credit’s strict requirements caution you must attach a copy of the properly executed settlement state- ment or similar documentation used to complete the pur- chase see instructions the accompanying instructions add that a taxpayer filing a return claiming the sec_36 credit must file on paper and attach all required documenta- tion other sections are much looser sec_170 for instance allows taxpayers a deduction for their charitable contribu- tions subsection f however generally disallows a deduction for any contribution of more that dollar_figure unless the taxpayer substantiates the gift see sec_170 sub- paragraphs c and d of sec_170 go further they disallow the deduction unless the taxpayer attaches a qualified_appraisal to his tax_return see sec_170 and d but taxpayers needn’t fasten this qualified_appraisal to claim their deduction-so long as they provide it to the commissioner within days of his asking for it see sec_1_170a-13 income_tax regs here attach verdate nov jun jkt po frm fmt sfmt v files bound vol without crop marks b v armstr dec jamie united_states tax_court reports doesn’t mean fasten -unlike what seems to be the case with current sec_36 i think it helpful on this subject where congress seems to have been concerned about administrability to also look at the irm two sections of the irm in effect when the arm- strongs filed their return and when they were audited seem particularly important to solving our problem irm pt date explains the commis- sioner’s general procedures when dealing with r eturns w ith m issing i nformation it instructs return reviewers to request the necessary information if s upporting forms schedules or documents are missing see id another part of the irm dealing with dependency_exemptions is even more explicit irm verifying form_8332 procedure upon receipt of a math error notice response concerning a missing or incomplete form_8332 or similar statement take the following actions c correspond with the noncustodial_parent enclose a blank form_8332 d request taxpayer to complete and return the form_8332 signed by the custodial_parent e tell taxpayer irs will reconsider the request when the appropriate information is provided if taxpayer provides the appropriate documentation allow the exemp- tion the irs has consistently followed such practices around irm classi- the time sec_152 was amended the i am aware that the irs office_of_chief_counsel has taken the position that sec_6330’s requirement that an appeals officer obtain verification that ‘the requirements of any applicable law or administrative procedure have been met’ in collection cases includes verification that the irs followed procedures the irm requires chief_counsel_advice date see also 131_tc_239 marvel j concur- ring the irm clarifies that returns with potential statute-of-limitations problems are never re- turned to the taxpayer irm pt date we don’t have this problem here the commissioner was well within the general three-year limitations_period when the armstrongs filed their petition with this court the irs seems to have followed this practice of requesting additional information regarding a taxpayer’s entitlement to a dependency_exemption where it hadn’t already been provided see 121_tc_245 noting the irs requested a form_8332 for verdate nov jun jkt po frm fmt sfmt v files bound vol without crop marks b v armstr dec jamie armstrong v commissioner contained s tandard fication handbook i nformation p aragraphs which solicited information from taxpayers t o help the irs complete the examination of their tax returns irm pt classification handbook ex date with regard to a claim for other depend- ents -dependents for whom the taxpayer lacked custody- the irs would request a copy of any written_agreement stating which parent will have custody and or claim the dependency_exemption or a form_8332 or similar state- ment see id current irs procedure also underscores the commissioner’s interpretation of attach the irm part dealing with l oose s chedules says they are not rejected outright but are associated or reassociated with the return they relate to upon receipt of a loose schedule do one of the following c if you want the loose schedule attached to the original return and not returned to you enter the employee number for files e if the loose schedule relates to a prior year return or for a return that should have already posted research for dln if dln is found enter it on the schedule and route it to return files function to associate with return if dln is not found return the loose schedule to taxpayer irm pt date in these subsections attached is synonymous with associ- ated -subsection c mentions loose schedules’ being sent to files to be attached with their return and subsection e describes loose schedules for prior year returns’ being sent to files to be associate d with their return see id in an age of email and efiling with physical documents con- verted into electrons and sent instantaneously across the world the commissioner can hardly be faulted for taking such a pragmatic view tax_year after the taxpayer had filed the return claiming the dependency_exemption irs examiners assigned to classification were required to follow the irm classification handbook irm pt date loose schedules are schedules that have inadvertently been detached from or cannot be associated with a return or have been received from taxpayers without sufficient infor- mation to indicate why they have been sent irm pt date emphasis added dln means document_locator_number in taxspeak see eg kovacevich v commissioner tcmemo_2009_160 wl at the commissioner even has a form form_8453 u s individual income_tax transmittal continued verdate nov jun jkt po frm fmt sfmt v files bound vol without crop marks b v armstr dec jamie united_states tax_court reports these sections indicate that informally at least the commissioner adopts a less rigid definition of attach -not just fastened but associated with or connected to by attribution i believe the part of the irs bureaucracy that handles the processing of returns has a perfectly reasonable understanding of the word for purposes of sec_152 this less-rigid definition of attach would not undermine the clarity of the law and it would allow legitimate taxpayer claims to be heard and evaluated-without substantially impairing the efficiency of the commissioner’s processing and collection activities i am mindful that we generally should construe deductions narrowly 503_us_79 but we aren’t confronted here with the scope of a deduction we address only a procedural rule for examining whether a taxpayer may claim the sec_152 exemption that again leaves our nonprecedential caselaw we have consistently noted sec_152’s attachment require- ment see eg himes wl at neal wl at and i agree with judge goeke that we have plenty of nonprecedential caselaw implicitly defining attach as physically fasten to in many cases involving sec_152 a taxpayer failed to staple a form_8332 or declaration to his return but then provided additional sup- port during audit or trial we’ve looked at this additional documentation but concluded that even if we considered it it didn’t comply with sec_152’s other requirements see eg santana wl at norwood v commissioner tcmemo_2003_63 wl at horn wl at in other cases however we’ve refused to look at the later-provided materials not fas- tened to the initial tax_return see eg espinoza v commis- sioner tcmemo_2011_108 wl at taxpayer provided permanent order of child_support but we didn’t analyze whether it satisfied sec_152 require- ments brissett v commissioner tcmemo_2003_310 wl at taxpayer provided voluntary separation and property settlement agreement but we didn’t for an irs e-file return that he uses for paper tax forms like the form_8332 that have to be associated with their electronically filed returns see tigta rept requiring personal identification numbers for electronically filed returns could improve tax adminis- tration and reduce costs doc tnt date verdate nov jun jkt po frm fmt sfmt v files bound vol without crop marks b v armstr dec jamie armstrong v commissioner analyze whether it satisfied sec_152 requirements we didn’t parse attaches in these cases and it appears- as is so often true in subjects where pro_se taxpayers predominate-that we did not have any argument from any of the parties in any of the cases about broad or narrow readings of the word we appear to have simply assumed a narrow reading- attaches as fas- tens -and applied that reading to the facts of the case at hand contemporaneously in only a few cases did we address the attachment require- ment head on in chamberlain v commissioner tcmemo_2007_178 wl at the taxpayer attached to his income_tax return an original copy of an executed form_8332 releasing his ex-wife’s claim to the dependency deductions for all future years a fire then destroyed all his copies of the document and in later years he included a note with his income_tax return referring to the original form see id the commissioner didn’t challenge chamberlain’s claim to a dependency_exemption despite his failure to attach a copy of the form to his tax returns for any of the years between and see id things changed in his ex-wife also claimed the exemption that year and the commissioner rejected chamberlain’s exemption claim to avoid getting whipsawed see id chamberlain challenged the commissioner’s determination and produced at trial a letter from his ex-wife confirming the prior existence of the form_8332 even though he couldn’t locate a copy see id wl at while sympathetic to his plight we sided with the commissioner holding that his note and letter didn’t satisfy sec_152 and the prior existence of a form_8332 didn’t matter-he needed to attach a copy of it every year to his tax_return or he couldn’t take the exemp- tion see id chamberlain is distinguishable from this case we are not dealing with the problems caused by the destruction of important records but instead the problem of whether an existing record complies with the manner-and-form require- ments of sec_152 whereas chamberlain produced no additional forms or declarations at or before trial the armstrongs gave the commissioner the child_support order and its modification chamberlain can just as verdate nov jun jkt po frm fmt sfmt v files bound vol without crop marks b v armstr dec jamie united_states tax_court reports easily be seen as a failure-of-proof case as it can be read for a narrow reading of attaches presley v commissioner tcmemo_1996_553 wl also tackled the attachment issue the taxpayer there apparently claimed the dependency_exemption without providing any supporting documentation see id wl at he provided an executed form_8332 at trial but the form was dated date-almost a year after the day he filed his income_tax return see id we refused to accept the late form_8332 because it wasn’t attached to his return and was dated after he filed the rel- evant tax_return see id i would view this rejection as akin to our reluctance to accept after-the-fact evidence purporting to substantiate various business expenses-unless a record is contemporaneous we can’t be sure it accurately reflects conditions as they existed at the time the expense was incurred see barton v commissioner tcmemo_2005_97 wl at expressing skeptic ism over allegedly substantiating records that were reconstructed over years after the year in issue mr armstrong didn’t create a record after his case had begun instead he dug out records the irs asked for-the and child_support orders-both of which were in effect when he filed his income_tax return i would hold that attaches in sec_152 means associates with or connects to by attribution i am con- vinced that this is the most reasonable way to read the section in light of the regulations contemporaneous with the amendment that suggest that attachment to a later filed amended_return would suffice the current administrative practice that encourages irs agents to ask taxpayers for missing forms when those forms are not physically fas- tened to the original return and the practical impossibility of such a narrow reading in an era where the irs is publicly and successfully encouraging taxpayers to file electronically this construction of attaches goes against nothing either congress or the secretary has said if either wishes to clarify through amendment to the code or by regulation what attaches means either is free to do so until then i would understand the term to mean providing a form_8332 or similar declaration to the commissioner or this court within verdate nov jun jkt po frm fmt sfmt v files bound vol without crop marks b v armstr dec jamie armstrong v commissioner the time for submitting materials that can be associated with a given return in a case before us it is one of the great theorems of law that if all sides are rational actors with perfect knowledge and zero transaction costs the allocation of resources-even including exemptions child tax_credits and the like-would be the same regardless of the rules we choose see ronald h coase the problem of social cost j l econ but in our fallen world there are few stages on which rational actors are more outpeopled by the children of wrath than in domestic-rela- tions law the rest of the court solves this case with a rule drawn against any taxpayer who tries to use as the substan- tial equivalent of a form_8332 a divorce decree or separation agreement in which the allocation of a dependency_exemption includes a condition this is a bright line bright lines are usually a good thing for tax law which is speckled with multifactor tests for everything from the definition of an employee see eg 117_tc_263 seven factors to whether a trans- action is a sale see eg 77_tc_1221 eight factors to the equity of granting innocent-spouse relief see eg henson v commissioner tcmemo_2012_288 wl at applying factors listed in revproc_2003_61 sec_4 c b pincite at least eight factors to figuring out whether an activity is engaged in for profit see eg foster v commissioner tcmemo_2012_207 wl at applying factors listed in sec_1_183-2 income_tax regs nine factors and to deciding if a tax- payer committed fraud see eg 99_tc_202 eleven factors maybe with the bright line we draw today more separated parents will hire escrow agents to manage the flow of forms see robert s taft tax aspects of divorce and separa- tion sec_5a pincitea-14 ndollar_figure rev suggesting that custodial_parent execute forms to be held in escrow until a third party verifies timely payment of child_support maybe state courts will grant the mr armstrongs of the world a right to offset their future child-support payments with the value of the tax benefits they have unjustly been denied but see supra note maybe we will see more grue- some spectacles of contempt and threats of jail like that we verdate nov jun jkt po frm fmt sfmt v files bound vol without crop marks b v armstr dec jamie united_states tax_court reports describe in 139_tc_508 or maybe the secretary congress or our reviewing courts will decide that the more reasonable course is to read the code to ensure that conditions on allocating the tax benefits of parenthood-conditions that congress expected to continue when it enacted sec_152 conditions that several states require as part of their family law and conditions that par- ents assume in good_faith are enforceable and effective will if a parent like mr armstrong fulfills them be honored i would have held that the armstrongs attached the state-court order-a declaration that in my view conformed to the substance of form 8332-to their return and would have allowed them to take the dependency_exemption for c e in i respectfully dissent halpern and vasquez jj agree with this dissent f verdate nov jun jkt po frm fmt sfmt v files bound vol without crop marks b v armstr dec jamie