UNITED STATES TAX COURT

114 T.C. No. 13

UNITED STATES TAX COURT

CHERYL J. MILLER, Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

JOHN H. LOVEJOY, Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket Nos. 8094-97, 8158-97.

Filed March 24, 2000.

Ps, husband (H) and wife (W), separated in 1992

and divorced in 1993. Following a contested divorce

proceeding, the Denver (Colorado) District Court (the

State court) issued Permanent Orders granting W sole

custody of Ps’ two minor children. The Permanent

Orders also provided that H “shall claim both of [the]

children on his tax returns as exemptions.” In

accordance with the Permanent Orders, H claimed the

dependency exemptions for the children on his 1993 and

1994 Federal income tax returns. However, he did not

attach a completed Form 8332, Release of Claim to

Exemption for Child of Divorced or Separated Parents,

signed by W to either of the returns. Instead, H

attached portions of the Permanent Orders to his

- 2 returns as support for the claimed dependency

exemptions. The Permanent Orders were not signed by W

consenting to the release of the dependency exemptions

to H. The Permanent Orders were executed by the State

court judge and were signed by W’s attorney signifying

approval as to form.

Held: The Permanent Orders do not qualify as a

written declaration signed by the custodial parent

confirming that the custodial parent will not claim

the children as dependents for 1993 and 1994. Thus,

attaching the Permanent Orders to H’s tax returns did

not satisfy the requirements of sec. 152(e)(2), I.R.C. and

H is not entitled to claim the dependency exemptions

for his minor children.

William C. Waller, Jr., for petitioner in docket

No. 8094-97.

Thomas G. Hodel, for petitioner in docket No. 8158-97.

Sara J. Barkley, for respondent.

MARVEL, Judge:

Respondent determined deficiencies in the

Federal income tax of petitioner Cheryl J. Miller, formerly

Cheryl J. Lovejoy (Ms. Miller), for the taxable years 1993 and

1994 of $8,863 and $2,766, respectively.

Respondent also

determined deficiencies in the Federal income tax of petitioner

John H. Lovejoy (Mr. Lovejoy) for the taxable years 1993 and 1994

of $12,018 and $5,905, respectively.

These cases have been consolidated for purposes of trial,

briefing, and opinion because they involve common questions of

- 3 fact and law arising from the separation and divorce of

petitioners.

In a prior opinion in these cases, Miller v. Commissioner,

T.C. Memo. 1999-273, we decided that "unallocated child support

and maintenance" payments made pursuant to a Colorado State court

decree were not deductible by the payor spouse under section 2151

or includable in the income of the payee spouse under section 71.

The only issues remaining for decision2 are:

(1) Whether a State court decree which awarded the

dependency exemptions for petitioners' minor children to the

noncustodial parent but which was not signed by the custodial

parent qualifies as a written declaration signed by the custodial

parent that she will not claim the children as dependents as

required by section 152(e)(2); and

(2) if issue (1) is resolved in favor of the noncustodial

parent, whether the custodial parent regained the right to claim

the dependency exemptions because the noncustodial parent failed

to pay all of the child support required by the State court

decree.

1

All section references are to the Internal Revenue Code as

in effect for the years in issue, and all Rule references are to

the Tax Court Rules of Practice and Procedure.

2

The only other issues raised by the notices of deficiency

are computational.

- 4 FINDINGS OF FACT

Some of the facts have been stipulated and are so found.

The parties' stipulations of fact are incorporated herein by

reference.

Petitioners Cheryl J. Miller and John H. Lovejoy resided in

Colorado during the years in issue and when the petitions in

these consolidated cases were filed.

Petitioners were married on August 30, 1970.

They had two

children during their marriage--Krista Holly Lovejoy, born on

January 8, 1977, and Dean Ross Lovejoy, born on May 10, 1980

(collectively, the children).

In May 1992, petitioners separated.

Ms. Miller remained in

the family home, and Mr. Lovejoy moved into a separate residence.

Mr. Lovejoy and Ms. Miller maintained separate residences

throughout 1993 and 1994 and were not members of the same

household at any time during those years.

Shortly after petitioners separated, Ms. Miller filed a

"Petition for Dissolution of Marriage" seeking, inter alia, a

divorce, temporary and permanent maintenance, and child support

(the divorce case).

On August 13, 1992, nunc pro tunc July 27,

1992, the Denver (Colorado) District Court (the State court)

signed Temporary Orders3 in the divorce case that incorporated

3

"Temporary Orders" may provide for temporary payment of

(continued...)

- 5 stipulations agreed to by the parties.

The Temporary Orders

conferred joint custody of the children on Ms. Miller and Mr.

Lovejoy but designated Ms. Miller "the primary residential

custodian for the children".

The Temporary Orders were silent

regarding which party was authorized to claim the dependency

exemptions for the children.

Following several days of testimony in a contested divorce

proceeding, the State court issued Permanent Orders on January

24, 1994, nunc pro tunc November 12, 1993, granting Ms. Miller

sole custody of the children.

The Permanent Orders also provided

that Mr. Lovejoy "shall claim both of [the] children on his tax

returns as exemptions".

Ms. Miller.

The Permanent Orders were not signed by

However, they were executed by the State court judge

and were also signed by the attorneys for Ms. Miller and Mr.

Lovejoy under a caption that read “APPROVED AS TO FORM”.

In accordance with the Permanent Orders, Mr. Lovejoy claimed

dependency exemptions for both children on his 1993 and 1994

Federal income tax returns.

However, he did not attach a

completed Form 8332 signed by Ms. Miller to either of the

returns.

3

Instead, Mr. Lovejoy attached some portion of the

(...continued)

debts, use of property, custody, maintenance, child support, or

attorney's fees during the pendency of divorce or separation

proceedings. Colo. Rev. Stat. sec. 14-10-108 (1998).

- 6 Permanent Orders to his 1993 and 1994 Federal income tax returns

to document his entitlement to the dependency exemptions.

Ms. Miller did not claim the dependency exemptions for the

children on her 1993 and 1994 Federal income tax returns or on an

amended return that she filed for 1993; however, Ms. Miller was

granted leave to amend her petition in this case prior to trial

to assert that she was entitled to claim the dependency

exemptions.4

Ms. Miller based her claim to the dependency

exemptions on a section of the Colorado Uniform Dissolution of

Marriage Act (UDMA), which provides:

“A parent shall not be

entitled to claim a child as a dependent if he or she has not

paid all court-ordered child support for that year or if claiming

the child as a dependent would not result in any tax benefit.”

Colo. Rev. Stat. sec. 14-10-115 (14.5) (1998).

Ms. Miller

alleged that Mr. Lovejoy had failed to pay all court-ordered

child support for 1993 and 1994 and that this failure entitled

her to the dependency exemptions under Colorado law.

At the conclusion of the trial, the parties were asked to

brief the issue of whether the Permanent Orders qualified as a

declaration signed by the custodial parent releasing the

4

Respondent also was granted leave to amend his answer in

Mr. Lovejoy's case to assert protectively that Mr. Lovejoy was

not entitled to claim the dependency exemptions for the children

if Ms. Miller's claim to the dependency exemptions was upheld.

- 7 dependency exemptions to the noncustodial parent under section

152(e)(2).

OPINION

A taxpayer may claim a dependency exemption for a child as

long as the child meets the statutory definition of "dependent".

Secs. 151(c)(1), 152(a)(1).

Ordinarily, a taxpayer may claim a

child as a dependent for a particular calendar year only if the

taxpayer provides over half of the child's support during that

calendar year.

See sec. 152(a).

However, special rules

determine which parent may claim a minor child as a dependent

where the parents are divorced or separated.

See sec. 152(e).

Prior to 1985, the definition of dependent led to

substantial controversy in cases involving divorced or separated

taxpayers because determining which parent provided over one-half

of a child's support presented difficult issues of proof and

substantiation.

See H. Rept. 98-432 (Part 2), at 1498 (1984).

In 1984, Congress amended section 152(e) to simplify the rules

for determining which parent properly may claim the dependency

exemption(s) for Federal income tax purposes.

See Deficit

Reduction Act of 1984, Pub. L. 98-369, sec. 423(a), 98 Stat. 799.

The pertinent parts of section 152(e) as amended provide:

SEC. 152(e). Support Test in Case of Child of

Divorced Parents, Etc.-(1) Custodial parent gets exemption.–-Except

as otherwise provided in this subsection, if–-

- 8 (A) a child (as defined in section

151(c)(3)) receives over half of his support

during the calendar year from his parents–(i) who are divorced or legally

separated under a decree of divorce or

separate maintenance,

(ii) who are separated under a

written separation agreement, or

(iii) who live apart at all times

during the last 6 months of the calendar

year, and

(B) such child is in the custody of one

or both of his parents for more than one-half

of the calendar year,

such child shall be treated, for purposes of subsection

(a), as receiving over half of his support during the

calendar year from the parent having custody for a

greater portion of the calendar year (hereinafter in

this subsection referred to as the “custodial parent”).

(2) Exception where custodial parent releases

claim to exemption for the year.-–A child of

parents described in paragraph (1) 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 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.

For purposes of this subsection, the term “noncustodial

parent” means the parent who is not the custodial

parent.

- 9 -

Under section 152(e) as amended, the custodial parent5 is

entitled to claim the dependency exemption with respect to his or

her child unless one of three exceptions applies.

See sec.

152(e); sec. 1.152-4T(a), Q&A-2, Temporary Income Tax Regs., 49

Fed. Reg. 34459 (Aug. 31, 1984).

Only one of the exceptions is

at issue here--the custodial parent's release of the claim to

exemption pursuant to section 152(e)(2).

Although section 152(e) was amended effective for years

beginning after December 31, 1984, the only regulations

promulgated with respect to section 152(e) since its amendment in

1984 are temporary regulations.6

Section 1.152-4T(a), Q&A-3,

Temporary Income Tax Regs., supra, provides that 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.”

5

In this opinion, we refer to the parent having physical

custody for the greater part of the year as the custodial parent

and to the parent who is not the custodial parent as the

noncustodial parent. See sec. 152(e)(flush language).

6

Temporary regulations 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); Truck

& Equip. Corp. v. Commissioner, 98 T.C. 141, 149 (1992).

- 10 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., supra.

The exemption may be released

for a single year, for a number of specified years, or for all

future years "as specified in the declaration."

Sec. 1.152-

4T(a), Q&A-4, Temporary Income Tax Regs., supra.

In this case, Mr. Lovejoy, the noncustodial parent, claimed

the dependency exemptions for his minor children for each of the

years at issue pursuant to a provision in the Permanent Orders

which summarily stated that Mr. Lovejoy "shall claim both of

[his] children on his tax returns as exemptions."

At trial, Mr.

Lovejoy testified that, although he did not ask Ms. Miller, the

custodial parent, to complete or sign Form 8332, he did attach a

copy of portions of the Permanent Orders to each of his returns

for 1993 and 1994 prior to filing the returns.7

7

The copies of Mr. Lovejoy's 1993 and 1994 returns, which

were admitted into evidence as exhibits to the stipulation of

facts, did not include any part of the Permanent Orders as

attachments. Mr. Lovejoy explained this omission by pointing out

that the stipulations were negotiated and agreed upon before any

issue regarding the dependency exemptions was raised and that

someone in the Service Center could have removed the attachments.

In her opening statement, respondent's counsel acknowledged this

was possible. We also note that the returns in evidence were

incomplete in other ways. For example, the 1994 return was filed

electronically. Although what purports to be the 1994 return in

the record summarizes the information included on the

electronically filed return, there is no signature page. In

(continued...)

- 11 The issue regarding the dependency exemptions was raised by

Ms. Miller in a motion for leave to amend her petition shortly

before trial.

Ms. Miller has the burden of proof regarding her

entitlement to the dependency exemptions in her case.

142(a).

See Rule

In Mr. Lovejoy's case, respondent moved to amend his

answer to assert protectively that if Ms. Miller was entitled to

claim the dependency exemptions, Mr. Lovejoy was not.

Therefore,

respondent bears the burden of proving that Mr. Lovejoy is not

entitled to the dependency exemptions.

See id.

We accept Mr. Lovejoy's testimony that he attached a copy of

the relevant portions of the Permanent Orders to his income tax

returns for the years at issue.

We still must decide, however,

whether attaching the Permanent Orders to Mr. Lovejoy's tax

returns satisfied the requirements of section 152(e)(2) and

section 1.152-4T(a), Q&A-3, Temporary Income Tax Regs., supra.

The answer to the question depends upon whether the Permanent

Orders qualify as a "written declaration" signed by Ms. Miller

confirming that she will not claim the dependency exemptions with

7

(...continued)

order to file electronically, a taxpayer must sign and file Form

8453, U.S. Individual Income Tax Declaration for Electronic

Filing, and transmit it with other paper documents that cannot be

filed electronically. Form 8453 must be received by the Internal

Revenue Service (IRS) before any electronically filed return is

complete. See Rev. Proc. 94-11, 1994-1 C.B. 557, 558. Form 8453

for 1994 and the attachments to it were not made a part of the

record at trial.

- 12 respect to her children for the years at issue.

See sec.

152(e)(2); sec. 1.152-4T(a), Q&A-3, Temporary Income Tax Regs.,

supra.

The Written Declaration Requirement-–Form 8332

Pursuant to the authority conferred upon it by section

152(e)(2) as amended, the Internal Revenue Service (IRS) issued

Form 8332 to enable a noncustodial parent to satisfy the written

declaration requirement of section 152(e)(2).

Form 8332 requires

a taxpayer to furnish (1) the names of the children for which

exemption claims were released, (2) the years for which the

claims were released, (3) the signature of the custodial parent

confirming his or her consent, (4) the Social Security number of

the custodial parent, (5) the date of the custodial parent's

signature, and (6) the name and the Social Security number of the

parent claiming the exemption.

See Neal v. Commissioner, T.C.

Memo. 1999-97; Paulson v. Commissioner, T.C. Memo. 1996-560;

White v. Commissioner, T.C. Memo. 1996-438.

Satisfying the signature requirement is critical to the

successful release of the dependency exemption within the meaning

of section 152(e)(2).

See Neal v. Commissioner, supra; Paulson

v. Commissioner, supra; White v. Commissioner, supra.

Section

152(e)(2) expressly provides that the noncustodial parent may

claim the dependency exemption for a child only if "the custodial

parent signs a written declaration”, sec. 152(e)(2)(A), and the

- 13 declaration is attached to the return of the noncustodial parent,

see sec. 152(e)(2)(B).

Form 8332 incorporates the statutory

requirement; Form 8332 is valid only when signed by the custodial

parent.

By signing the document, the custodial parent

affirmatively consents to the release of the dependency exemption

to the noncustodial parent.

In this case, Mr. Lovejoy did not attach Form 8332 to his

Federal income tax returns for 1993 or 1994.

even ask Ms. Miller to sign Form 8332.

In fact, he did not

Instead, he attached

portions of the Permanent Orders to his returns.

As a result,

unless the Permanent Orders qualify as 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),

Mr. Lovejoy has not satisfied the requirements of either section

152(e)(2) or the applicable regulation.

We turn, therefore, to a

review of the Permanent Orders.

The Written Declaration Requirement: Are the Permanent Orders a

Statement Conforming to the Substance of Form 8332?

Comparing the Permanent Orders with Form 8332 reveals

several differences between the two documents.

Form 8332

requires a taxpayer, among other things, to furnish the years for

which the claims were released, the signature of the custodial

parent, the date of that signature, and the Social Security

number of the custodial parent.

By contrast, the Permanent

- 14 Orders do not list the years for which the dependency exemptions

were released, and they do not bear either the signature of the

custodial parent, Ms. Miller, or her Social Security number.

In order for a document to qualify as a statement conforming

to the substance of Form 8332, it must contain substantially the

same information required by Form 8332.

In particular, the

document must satisfy the signature requirement of section

152(e)(2).

The signature of the custodial parent is critical to

the successful implementation of Congress’ plan to eliminate

support-based disputes regarding dependency exemptions and to

simplify the rules regarding when a noncustodial parent may claim

the dependency exemptions for his or her children.

It is beyond debate that Ms. Miller did not sign the

Permanent Orders.

The Permanent Orders were executed by the

State court judge and also were signed by petitioners’ counsel

signifying their approval as to form.

Section 152(e)(2)

requires the signature of the custodial parent.

We must examine,

therefore, whether either the execution of the Permanent Orders

by the State court judge or the signing of the Permanent Orders

by Ms. Miller’s counsel as to form satisfies the signature

requirement of section 152(e)(2).

- 15 -

Is the Signature of the Custodial Parent’s Attorney as to Form

Sufficient To Satisfy the Signature Requirement of Sec.

152(e)(2)?

The Permanent Orders were issued by the State court judge

following a contested divorce hearing held over several days.

The Permanent Orders were signed by petitioners’ counsel as to

form only.

Although neither petitioner discussed whether the

signature of the custodial parent’s counsel approving the form of

the Permanent Orders only is sufficient to satisfy the signature

requirement of section 152(e)(2), we address the issue sua

sponte.

Ms. Miller’s attorney signed the Permanent Orders subject to

a qualification which indicated that he was approving only the

form of the Permanent Orders.

The signature of counsel approving

the form of a document ordinarily does not signify general

consent to, and approval of, the substance of the document.

See

generally Albright v. District Court, 375 P.2d 685 (Colo. 1962)

(Local rule required counsel to sign a pretrial order signifying

his approval as to form and content.

Counsel signed the pretrial

order, approving it as to form only, in order to preserve all

objections and exceptions made to the rulings of the court.

The

court held that approval of the content of the order pursuant to

the local rules is an approval only of the recital of what

transpired at the pretrial conference.

Under the facts of the

- 16 case, such approval does not operate as a waiver of counsel’s

objections to the terms of the order or the application of

substantive law in the order).

We believe that the signature of

Ms. Miller’s attorney in this case merely signified that Ms.

Miller’s attorney had reviewed and approved the form of the

Permanent Orders while preserving Ms. Miller’s right to appeal

from the rulings reflected in the Permanent Orders.

See id.

The signature requirement of section 152(e)(2) demands more

than simply an acknowledgment regarding form; the signature of

the custodial parent must confirm the custodial parent’s

intention to release the dependency exemption to the noncustodial

parent and signify her agreement not to claim the dependency

exemption herself.

The signature of Ms. Miller’s attorney

approving the form of the Permanent Orders does not satisfy the

mandate of section 152(e)(2).8

Is the Signature of the State Court Judge on the Permanent Orders

Sufficient To Satisfy the Signature Requirement of Sec.

152(e)(2)?

Mr. Lovejoy’s principal argument is that the Permanent

Orders are sufficient to establish his entitlement to the

dependency exemptions because the State court gave him the right

to claim them on his tax returns.

8

Ms. Miller and respondent

Our conclusion is limited to the facts of this case. We do

not decide whether there are any circumstances under which the

signature of a custodial parent’s attorney can ever satisfy the

signature requirement of sec. 152(e)(2).

- 17 disagree, contending that, in order for a document to qualify

under section 152(e)(2), the custodial parent must sign it.

Although the Permanent Orders gave Mr. Lovejoy the right to claim

the dependency exemptions, Mr. Lovejoy still had to satisfy the

requirements of section 152(e)(2).

According to Ms. Miller and

respondent, Mr. Lovejoy failed to do so.

We agree.

This Court consistently has held that section 152(e)(2)

clearly and unambiguously requires the custodial parent to sign a

written declaration releasing the dependency exemption for his or

her child to the noncustodial parent.

See Neal v. Commissioner,

T.C. Memo. 1999-97; Paulson v. Commissioner, T.C. Memo. 1996-560;

White v. Commissioner, T.C. Memo. 1996-438; Peck v. Commissioner,

T.C. Memo. 1996-33.

On several occasions we have rejected well-

intentioned but flawed attempts to comply with section 152(e)(2).

See Neal v. Commissioner, supra; Paulson v. Commissioner, supra;

White v. Commissioner, supra; Peck v. Commissioner, supra.

Even

where a State court judge has entered an order “granting” the

noncustodial parent the right to claim the Federal dependency

exemption for his child and the noncustodial parent attached a

copy of the order to his tax return, we have rejected the

noncustodial parent’s claim to the dependency exemption where the

custodial parent failed to sign a written declaration as required

by section 152(e).

See Neal v. Commissioner, supra.

- 18 In Neal, the taxpayer, a noncustodial parent who had claimed

dependency exemptions for all three of his children on his

Federal income tax returns for the years at issue, supported his

claim to the exemptions by attaching Forms 8332 (one for each

child) and copies of the Decree of Dissolution and a State court

order amending the decree.

The decree as amended by the related

order granted him the right to claim the dependency exemption for

one of his children but was silent with respect to the other two

children.

parent.

The Forms 8332 were not signed by the custodial

He made no effort to obtain the signature of the

custodial parent on the Forms 8332 or on any other document that

might qualify as their substantive equivalent.

The taxpayer in

Neal relied on publications of the IRS which, he claimed,

required only that the noncustodial parent attach to his returns

a copy of the decree or order granting him the right to claim the

dependency exemption for his child.

introduced into evidence.

The publications were not

Based on certain testimony in the

case, we assumed without deciding that the IRS’s publications

required the custodial parent to sign the pertinent decree or

agreement.

We concluded that, since neither the Forms 8332 nor

the decree and order were signed by the custodial parent, the

taxpayer did not satisfy the requirements of section 152(e)(2).

Unlike the taxpayer in Neal, Mr. Lovejoy does not rely on

any IRS publication to support his claim to the dependency

- 19 exemptions.

Our review of the relevant IRS publications reveals

that the guidance given to taxpayers for the years at issue is

less than clear and may even be misleading regarding the effect

of a State court decree on the ability of the noncustodial parent

to claim the dependency exemption for his or her child.9

9

The IRS issued administrative guidance in the form of

instructions to taxpayers to assist them in complying with the

requirements of sec. 152(e)(2) for each of the years at issue.

See Publications 501, Exemptions, Standard Deduction, and Filing

Information (for use in preparing 1993 returns and 1994 returns),

and Publications 504, Divorced or Separated Individuals (for use

in preparing 1993 returns and 1994 returns). Each of these

publications states that the noncustodial parent is treated as

the parent who gave more than half the child’s support (and

therefore is entitled to claim the dependency exemption for the

child) if “The custodial parent signs a statement agreeing not to

claim the child’s exemption, and the noncustodial parent attaches

this statement to his or her return”. In another section of the

publications, the IRS addresses how a noncustodial parent who has

been awarded the right to claim the dependency exemption for his

or her child in a divorce decree or separation agreement may

demonstrate his or her entitlement to the child’s dependency

exemption. For example, in Publication 501, Exemptions, Standard

Deduction, and Filing Information (for use in preparing 1993

returns), the IRS states as follows:

Noncustodial parent. The noncustodial parent will be

treated as providing more than half of the child’s

support if:

*

2)

*

*

*

*

*

*

A decree or agreement went into effect after 1984

and it unconditionally states that the

noncustodial parent can claim the child as a

dependent * * *

See also Publication 501, Exemptions, Standard Deduction, and

Filing Information (for use in preparing 1994 returns), and

Publication 504, Divorced or Separated Individuals, (for use in

(continued...)

- 20 Unfortunately, the fact that an IRS publication is unclear or

inaccurate does not help the taxpayer.

Well-established

precedent confirms that taxpayers rely on such publications at

their peril.

Administrative guidance contained in IRS

publications is not binding on the Government, nor can it change

the plain meaning of tax statutes.

See Johnson v. Commissioner,

620 F.2d 153 (7th Cir. 1980), affg. T.C. Memo. 1978-426 (Tax

Information on Individual Retirement Savings Programs); Carpenter

v. United States, 495 F.2d 175 (5th Cir. 1974) (Tax Guide for

9

(...continued)

preparing 1993 returns). None of these publications states how

the signature requirement referenced earlier in the publications

applies to the decree or agreement. In contrast, in Publication

504, Divorced or Separated Individuals, (for use in preparing

1994 returns) the IRS revised its guidance to taxpayers to

clarify that the decree or agreement on which the noncustodial

parent relies must contain the signature of the custodial parent:

Noncustodial Parent

Similar statement. If your divorce decree or

separation agreement made after 1984 unconditionally

states that you can claim the child as your dependent,

you can attach to your return copies of the following

pages from the decree or agreement instead of Form

8332:

1)

The cover page (write the other parent’s social

security number on this page),

2)

The page that unconditionally states you can claim

the child as your dependent, and

3)

The signature page with the other parent’s

signature and the date of the agreement.

- 21 U.S. Citizens Abroad); Adler v. Commissioner, 330 F.2d 91, 93

(9th Cir. 1964), affg. T.C. Memo. 1963-196 (Your Federal Income

Tax for Individuals).

The authoritative sources of Federal tax

law are the statutes, regulations, and judicial decisions; they

do not include informal IRS publications.

See Zimmerman v.

Commissioner, 71 T.C. 367, 371 (1978), affd. 614 F.2d 1294 (2d

Cir. l979).

Section 152(e)(2) clearly requires that the custodial parent

release the dependency exemption for a child by signing a written

declaration to that effect in order for the noncustodial parent

to claim the child’s dependency exemption.

The control over a

child’s dependency exemption conferred on the custodial parent by

section 152(e)(2) was intended by Congress to simplify the

process of determining who is entitled to claim dependency

exemptions for children of a marriage.

2), at 1498 (1984).

See H. Rept. 98-432 (Part

To make section 152(e)(2) work as intended,

that control must be preserved by insisting on adherence to the

requirements of section 152(e)(2).

Simply 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 section 152(e)(2)(A).

Although the

Permanent Orders granted Mr. Lovejoy the right to claim the

dependency exemptions for his children, a State court cannot

determine issues of Federal tax law.

See Kenfield v. United

- 22 States, 783 F.2d 966 (10th Cir. 1986)); White v. Commissioner,

T.C. Memo. 1996-438 (citing with approval Commissioner v. Tower,

327 U.S. 280 (1946)).

Ms. Miller’s contention that she was entitled to claim the

dependency exemptions for her two children originally was based

on a section of the UDMA10 which provides:

"A parent shall not be

entitled to claim a child as a dependent if he or she has not

paid all court-ordered child support for that year".

Stat. sec. 14-10-115 (14.5) (1998).

Colo. Rev.

Ms. Miller contended that

Mr. Lovejoy did not comply with his child support obligations,

and, therefore, under the operative provisions of the UDMA, he

forfeited his right to the dependency exemptions arguably awarded

to him by the Permanent Orders.

If we accepted Ms. Miller’s

statement of the issue, we would find ourselves in the middle of

a child support fight similar to that which Congress intended to

remove from the Federal courts when it amended section 152(e) in

1984.

Instead, we have framed the issue as it should be framed:

Did the noncustodial parent do what was necessary to satisfy

section 152(e)(2)?

Because we conclude that he has not done so

in this case, we need not decide the child support dispute

presented to us by Ms. Miller.11

10

Colo. Rev. Stat. secs. 14-10-101 through 14-10-133 (1998).

11

It is questionable whether State law can impose the

(continued...)

- 23 Since Mr. Lovejoy did not satisfy the requirements of

section 152(e)(2), he is not entitled to claim the dependency

exemptions with respect to his children for either 1993 or 1994.12

As the custodial parent, Ms. Miller is entitled to the exemptions

under Federal law.

We have carefully considered all remaining arguments made by

the parties for a result contrary to that expressed herein, and,

to the extent not discussed above, find them to be irrelevant or

without merit.

11

(...continued)

additional requirement that the noncustodial parent timely pay

his child support obligations in order to claim the dependency

exemption for a minor child under sec. 152(e)(2). See U.S.

Const. art. VI, sec. 2; Kenfield v. United States, 783 F.2d 966

(10th Cir. 1986); White v. Commissioner, T.C. Memo. 1996-438

(citing Commissioner v. Tower, 327 U.S. 280 (1946)); Nieto v.

Commissioner, T.C. Memo. 1992-296; see also Bittker & Lokken,

Federal Taxation of Income, Estates and Gifts, par. 4.1.1, at 4-6

and 4-7 (3d ed. 1999).

12

However, Mr. Lovejoy may have a remedy in State court.

See Colo. Rev. Stat. sec. 14-10-115 (14.5) (1998) which provides,

in part, that “A parent shall not be entitled to claim a child as

a dependent * * * if claiming the child as a dependent would not

result in any tax benefit.”

- 24 -

To reflect the foregoing, the prior opinion in these cases,

and the concessions by the parties,

Decisions will be entered

under Rule 155.