finding that the custodial parent's "failure to sign either a Form 8332 or a substantially equivalent document is the controlling factor in this case"
How later courts described this case
- finding that the custodial parent's "failure to sign either a Form 8332 or a substantially equivalent document is the controlling factor in this case"
Written by the judges who cited it.
The opinion
T.C. Memo. 2010-97
UNITED STATES TAX COURT
LESLIE AND LINDA HIMES, Petitioners v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 13885-08. Filed May 4, 2010.
Leslie and Linda Himes, pro se.
Lisa K. Hunter, for respondent.
MEMORANDUM FINDINGS OF FACT AND OPINION
PARIS, Judge: Respondent determined a deficiency of $3,618
in petitioners’ Federal income tax for 2006. After concessions,1
the issue for decision is whether petitioners are entitled to
1
The notice of deficiency disallowed exemptions and credits
related to a third dependent, AT, petitioners’ minor grandchild.
The parties filed a stipulation of settled issues on June 22,
2009, resolving all issues related to AT in favor of petitioners.
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dependency exemption deductions and child tax credits under
sections 1512 and 24, respectively, for Leslie Himes’
(petitioner’s) sons, MH3 and GH, from a former marriage.
FINDINGS OF FACT
Some of the facts have been stipulated and are so found.
The stipulation of facts and the attached exhibits are
incorporated herein by this reference. Petitioners resided in
Nebraska at the time the petition was filed.
Before his marriage to Linda Himes, petitioner was married
to Ms. Barbara Wyke (Ms. Wyke), formerly Barbara Himes.
Petitioner and Ms. Wyke have two children, MH, who was born in
1989, and GH, who was born in 1990.
On September 11, 1995, petitioner and Ms. Wyke divorced.
The District Court of Saline County, Nebraska, issued a decree of
dissolution of marriage (divorce decree) awarding custody of the
two children to Ms. Wyke. Petitioner was awarded liberal
visitation rights and ordered to make child support payments to
Ms. Wyke. That court granted petitioner the right to claim a
dependency exemption deduction for GH on Federal and State tax
returns for 1995 and all subsequent years. The District Court
2
Section references are to the Internal Revenue Code of
1986, as amended, and all Rule references are to the Tax Court
Rules of Practice and Procedure, unless otherwise indicated.
3
This Court refers to minor children by their initials. See
Rule 27(a)(3).
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judge and petitioner’s attorney signed and executed the divorce
decree.
On January 22, 1999, the District Court of Saline County,
Nebraska, issued an order (modified decree) modifying the divorce
decree. The modified decree maintained custody of the children
with Ms. Wyke and continued petitioner’s visitation privileges.
The modified decree still required the petitioner to make child
support payments to Ms. Wyke. However, the modified decree
significantly changed petitioner’s right to claim dependency
exemption deductions. The modified decree provided that
petitioner was entitled to claim the dependency exemption
deduction for both children if he was current on his child
support payments at the conclusion of the tax year. The decree
provided the following process for transferring the exemption.
First, Ms. Wyke would deliver a release to the exemption to the
county clerk. Second the clerk, upon verification that all child
support payments were made, would deliver the release to
petitioner. The modified decree was signed only by the District
Court judge.
In 1999 Ms. Wyke, without permission of the State court,
left Nebraska with the two children. She did not provide a
forwarding address to petitioner, and he subsequently lost all
contact with his children. Despite this petitioner continued to
make regular child support payments. Additionally, every year
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petitioner claimed dependency exemption deductions for the two
children on his tax return. Ms. Wyke never executed a Form 8332,
Release of Claim to Exemption for Child of Divorced or Separated
payments, even though the modified decree specifically required
her to do so.
For tax year 2006, petitioners timely filed Form 1040A, U.S.
Individual Income Tax Return, attached to their return a copy of
the modified decree, and claimed dependency exemption deductions
and child tax credits for both MH and GH. Ms. Wyke also claimed
dependency exemption deductions and child tax credits for both MH
and GH. Ms. Wyke was the custodial parent of MH and GH for 2006.
OPINION
I. Dependency Exemption Deduction
Section 151(c) allows taxpayers to deduct an exemption for
each individual who qualifies as a dependent as defined in
section 152. Section 152 provides several definitions for a
dependent, including section 152(e), which specifies how to
determine the dependent status of children of divorced parents.
The exceptions of section 152(e)(1) apply if a child receives
more than half of her support from her parents, the parents are
divorced, and the parents have custody of the child for more than
half of the tax year.
If the requirements of section 152(e)(1) are met the
custodial parent may claim the exemption, unless all of the
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criteria for one of the section 152(e) exceptions have been met.
The only relevant exception is section 152(e)(2), which provides
that the noncustodial parent may claim the dependent exemption
for a calendar year only if:
(A) the custodial parent signs a written
declaration (in such manner and form as the Secretary
may by regulations prescribe) that such custodial
parent will not claim such child as a dependent for any
taxable year beginning in such calendar year, and
(B) the noncustodial parent attaches such written
declaration to the noncustodial parent’s return for the
taxable year beginning during such calendar year.
The regulations in effect in 2006 specify that the declaration
required under section 152(e)(2) must be made either on a
completed Form 8332 or on a statement conforming to the substance
of Form 8332. See sec. 1.152-4T(a), Q&A-3, Temporary Income Tax
Regs., 49 Fed. Reg. 34459 (Aug. 31, 1984).4 Form 8332 requires a
taxpayer to furnish (1) the names of the children for whom
exemption claims were released, (2) the years for which the
claims were released, (3) the signature of the custodial parent,
(4) the date of the custodial parent’s signature, (5) the name of
the noncustodial parent claiming the exemption, and (6) the
Social Security numbers for the custodial and noncustodial
parents.
4
The Court notes that temporary regulations have binding
effect and are entitled to the same weight as final regulations.
See Peterson Marital Trust v. Commissioner, 102 T.C. 790, 797
(1994), affd. 78 F.3d 795 (2d Cir. 1996).
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Ms. Wyke’s failure to sign either a Form 8332 or a
substantially equivalent document is the controlling factor in
this case. The signature of the custodial parent releasing the
claim to the dependent exemption is a statutory requirement that
cannot be waived. See sec. 152(e)(2) (providing that “the
custodial parent signs a written declaration”); Miller v.
Commissioner, 114 T.C. 184, 190 (2000) affd. on other grounds sub
nom. Lovejoy v. Commissioner, 293 F.3d 1208 (10th Cir. 2002).
Although this Court has allowed the use of a divorce decree to
serve as a substantially equivalent document to a Form 8332 in
appropriate cases, a decree that was not signed by the custodial
parent is not sufficient. Compare Boltinghouse v. Commissioner,
T.C. Memo. 2003-134, with Miller v. Commissioner, supra.
Petitioners have provided no evidence that Ms. Wyke has ever
signed a Form 8332 or equivalent document, nor was any signed
document attached to their 2006 tax return. Therefore,
petitioners have not met the statutory requirements necessary to
claim the dependency exemption deductions.
Although this Court is sympathetic to petitioner’s
difficulties in acquiring a signed Form 8332, especially during
those years when the children’s whereabouts were unknown, the
statutory language clearly controls this case. Absent a signed
release by the custodial parent, petitioner is unable to claim
dependency exemption deductions for his sons. Neither
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petitioner’s faithful payments of child support nor Ms. Wyke’s
failure to comply with her divorce decree and State law is
sufficient to release the deduction to petitioner. Without a
completed Form 8332 or a substantially equivalent document,
petitioner, as the noncustodial parent, does not qualify for the
deductions under section 151.
II. Child Tax Credit
Section 24(a) provides that a taxpayer may claim a credit
for each qualifying child. A taxpayer may satisfy the qualifying
child requirement if a taxpayer establishes entitlement to the
dependency exemption deduction under the exception of section
152(e)(2). Walker v. Commissioner, T.C. Memo. 2008-194. Because
petitioners have failed to satisfy the requirements under section
152(e)(2), as discussed above, they are ineligible for the child
tax credit provided by section 24(a) for MH and GH in tax year
2006.
To reflect the foregoing and the concessions of the parties,
Decision will be entered
under Rule 155.