The opinion
T.C. Summary Opinion 2010-56
UNITED STATES TAX COURT
ANGELA J. BROWN, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 7066-09S. Filed April 29, 2010.
Angela J. Brown, pro se.
Melanie E. Senick, for respondent.
DEAN, Special Trial Judge: This case was heard pursuant to
the provisions of section 7463 of the Internal Revenue Code in
effect when the petition was filed. Pursuant to section 7463(b),
the decision to be entered is not reviewable by any other court,
and this opinion shall not be treated as precedent for any other
case. Unless otherwise indicated, subsequent section references
are to the Internal Revenue Code in effect for the year in issue,
- 2 -
and all Rule references are to the Tax Court Rules of Practice
and Procedure.
The issue for decision is whether petitioner is entitled to
a dependency exemption deduction for her daughter for 2006.
Background
Some of the facts have been stipulated and are so found.
The stipulation of facts and the attached exhibits are
incorporated herein by reference. When petitioner filed her
petition, she resided in the State of Washington.
Petitioner timely filed Form 1040, U.S. Individual Income
Tax Return, for 2006 and claimed a dependency exemption deduction
for her daughter, SWB.1 Petitioner was not the custodial parent
of SWB for 2006, and she did not attach Form 8332, Release of
Claim to Exemption for Child of Divorced or Separated Parents, or
its equivalent, to her Form 1040.
In 2006 SWB did not reside with petitioner but resided with
her father. SWB’s father also claimed SWB as a dependent on his
2006 Federal income tax return.
Respondent issued a notice of deficiency on January 30,
2009, disallowing petitioner’s claimed dependency exemption
deduction for SWB.
1
The Court refers to minor children by their initials. Rule
27(a)(3).
- 3 -
Discussion
I. Burden of Proof
Generally, the Commissioner’s determinations are presumed
correct, and the taxpayer bears the burden of proving that those
determinations are erroneous.2 Rule 142(a); see INDOPCO, Inc. v.
Commissioner, 503 U.S. 79, 84 (1992); Welch v. Helvering, 290
U.S. 111, 115 (1933).
II. Dependency Exemption Deductions
Section 151(c), in pertinent part, allows a taxpayer to
claim as a deduction the exemption amount for each individual who
is a “dependent” of the taxpayer as defined in section 152 and
who is the taxpayer’s child and satisfies certain age
requirements.
Section 152(a) defines “dependent” to mean a qualifying
child or a qualifying relative of the taxpayer. In the case of
divorced or separated parents, section 152(e)(1) provides that
when a child is in the custody of one parent for over one-half of
the year, the child is treated as being the qualifying child or
qualifying relative of the noncustodial parent only if the
requirements of section 152(e)(2) or (3) are met.
2
Petitioner has not claimed or shown that she meets the
requirements under sec. 7491(a) to shift the burden of proof to
respondent as to any factual issue relating to her liability for
tax.
- 4 -
Section 152(e)(2) provides: “if * * * the custodial parent
signs a written declaration (in such manner and form as the
Secretary may by regulations prescribe)” that he or she will not
claim the child as a dependent and the noncustodial parent
attaches the written declaration to his or her return for the
taxable year, then the noncustodial parent is entitled to the
dependency exemption deduction. For purposes of section
152(e)(2), the term “noncustodial parent” means the parent who is
not the custodial parent. See sec. 152(e)(4).
The written declaration may be made on a form provided by
the Internal Revenue Service or a document that conforms to its
substance. Miller v. Commissioner, 114 T.C. 184, 190-191 (2000)
(citing sec. 1.152- 4T(a), Q&A-3, Temporary Income Tax Regs., 49
Fed. Reg. 34459 (Aug. 31, 1984)); see also Neal v. Commissioner,
T.C. Memo. 1999-97. The written declaration is embodied in Form
8332, and it incorporates the requirements of section 152(e)(2).
Miller v. Commissioner, supra at 190.
Petitioner does not contest failing to attach a valid Form
8332, or its equivalent, to her 2006 return. Instead, she
provided a copy of Form 8332 dated February 13, 2009, purportedly
signed by the custodial parent, and asks the Court to
retroactively apply it to her 2006 return. Respondent, however,
also provided a copy of Form 8332, signed by the custodial
parent, which purports to release the claim for exemption for
- 5 -
future years but on the line for the name of the child to which
it relates is the stamped language “Revoked Effective 29 January
2009”. Petitioner admitted that the signature on the Form 8332
respondent provided is the signature of the custodial parent.
Section 152(e) grants the dependency exemption to a
noncustodial parent only where he or she attaches a valid Form
8332 or its equivalent to a Federal income tax return for the
taxable year for which he or she claims the exemption. See
Presley v. Commissioner, T.C. Memo. 1996-553. Petitioner did not
attach a valid Form 8332 to her 2006 return, and it is impossible
to determine, based on the record, whether the custodial parent
executed a valid Form 8332 or intended to revoke a prior Form
8332. Accordingly, we sustain respondent’s disallowance of the
dependency exemption deduction for SWB for 2006.
To reflect the foregoing,
Decision will be entered
for respondent.