BROWNING v. COMMISSIONER OF INTERNAL REVENUE
T.C. Summary Opinion 2012-121
JACKSON M. BROWNING, Petitioner
v.
COMMISSIONER OF INTERNAL REVENUE, Respondent.
Docket No. 7312-10S.
United States Tax Court.
Filed December 20, 2012.
Jackson M. Browning, pro se.
SUMMARY OPINIONGALE, Judge.
This case was heard pursuant to the provisions of section 7463 of the Internal Revenue Code in effect when the petition was filed.1 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. Respondent determined a $3,250 deficiency in petitioner's 2007 Federal income tax. The issues for decision are whether petitioner is entitled to a dependency exemption deduction, a child tax credit, and a dependent care credit for his son for the 2007 taxable year.
BackgroundSome of the facts have been stipulated and are so found. The stipulation of facts, supplemental stipulation of facts, and accompanying exhibits are incorporated herein by this reference.
Petitioner's son, H.B., was born in 2004.2 Petitioner and H.B.'s mother, Dane Gallardo, never married and were living separately throughout 2007. Permanent orders issued by the District Court, Adams County, Colorado (State court), following a hearing held on May 7, 2007, adjudicated petitioner the natural father of H.B., granted him 38 hours of regular parenting time per week and additional parenting time on specified holidays, and ordered him to pay monthly child support to Ms. Gallardo. Petitioner and Ms. Gallardo had split the custody of H.B. evenly before May 2007 and strictly abided by the custody provisions of the permanent orders thereafter. Thus, Ms. Gallardo had custody of H.B. for the greater portion of 2007.
1. Unless otherwise indicated all section references are to the Internal Revenue Code of 1986 as in effect for the year at issue and all Rule references are to the Tax Court Rules of Practice and Procedure. All dollar amounts are rounded to the nearest dollar.
2. Pursuant to Rule 27(a)(3) we refer to minor children by their initials.
3. As discussed infra, Form 8332 is the document by which a parent entitled to a dependency exemption by virtue, inter alia, of having custody of a child for the greater portion of a calendar year (the "custodial parent") can release his or her claim to a dependency exemption to the other parent (the "noncustodial parent"). See sec. 152(e)(2), (4); sec. 1.152-4(e)(1), Income Tax Regs.
4. We note that the amount of the credits disallowed on the face of the notice of deficiency ($3,400) exceeds the determined deficiency ($3,250). A Form 4549, Income Tax Examination Changes, accompanying the notice of deficiency credits petitioner with reporting $1,602 of total tax due on his return; however, the copy of petitioner's return stipulated by the parties reports total tax due of $942. A Schedule of Adjustments attached to the notice of deficiency indicates that the $660 discrepancy likely resulted from respondent's treating petitioner as having claimed a dependent care credit of $1,740 rather than the $2,400 shown on the return.
5. Because Ms. Gallardo had custody of H.B. for the greater portion of 2007, she was the custodial parent, and petitioner was the noncustodial parent, for that year. See supra note 3.
6. We are satisfied, on the basis of petitioner's testimony and the terms of the permanent orders, that H.B. received over one-half of his support from, and resided for more than one-half of the calendar year with, his parents during 2007. Respondent does not contend otherwise.
7. Form 8332 requires: (1) the name of the child; (2) the signature of the custodial parent confirming his or her consent not to claim an exemption for the child; (3) the year(s) for which the claim is being released; (4) the date of the custodial parent's signature; (5) the custodial parent's Social Security number; and (6) the name and Social Security number of the noncustodial parent. See Miller v. Commissioner, 114 T.C. 184, 190 (2000).
8. The State court permanent orders are not a valid substitute for a Form 8332 in this case because they do not bear Ms. Gallardo's signature, but only her attorney's, approving the documents as to form. See Miller v. Commissioner, 114 T.C. at 192-193.
9. The temporary regulation was replaced by a permanent regulation effective for taxable years beginning after July 2, 2008. T.D. 9408, 2008-2 C.B. (Vol. 1) 323, 329; see also sec. 1.152-4, Income Tax Regs. The permanent regulation similarly requires a noncustodial parent claiming a dependency exemption to attach a completed Form 8332 or conforming document to his or her return; however, under the permanent regulation, a written declaration not on a Form 8332 must be a document executed for the sole purpose of serving as a written declaration under sec. 1.152-4, Income Tax Regs.
10. In contrast, the document signed by the custodial parent in Armstrong v. Commissioner, 139 T.C. ___, ___ (slip op. at 4-5) (Dec. 19, 2012), existed at the time the noncustodial parent filed his return, but was not submitted with the return.
11. Respondent contends that the period of limitations for Ms. Gallardo's 2007 taxable year has closed and that she claimed a dependency exemption for H.B. for that year. Petitioner has not disputed the foregoing.
12. While the cross-reference in sec. 24(c)(1) to sec. 152(c) does not expressly incorporate the special rule of sec. 152(e), the legislative history shows that Congress intended such an incorporation. See H.R. Conf. Rept. No. 108-696, at 62-65 (2004), 2004 U.S.C.C.A.N. 1029, 1057-1060; Staff of J. Comm. on Taxation, General Explanation of Tax Legislation Enacted in the 108th Congress, at 127-128 (J. Comm. Print 2005).