Lawrence Michael Spanier - Page 8

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               In general, however, State courts, cannot by their decisions           
          determine issues of Federal tax law.  Miller v. Commissioner, 114           
          T.C. 184, 196 (2000); see also Kenfield v. United 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)).  Therefore, even assuming arguendo that Mr. Spanier            
          is correct in his contention, the nunc pro tunc order issued by             
          the superior court is ineffective because he did not comply with            
          the requirements set down in the Internal Revenue Code.                     
               The exception granting the noncustodial parent the exemption           
          under section 152(e)(2) applies only if "the custodial parent               
          signs a written declaration".  Ms. Spanier (admittedly the                  
          custodial parent) did not sign any such written declaration.                
          Because Mr. Spanier, the noncustodial parent, did not meet the              
          requirements of the Internal Revenue Code, he simply does not               
          come within the exception provided in section 152(e)(2).                    
          Accordingly, the Court holds that Mr. Spanier is not entitled to            
          dependency exemption deductions for Leah, Marissa, and Aaron for            
          1998.  Further, the Court holds that Ms. Spanier is entitled to             
          those dependency exemption deductions for 1998.                             
          Additions to Tax                                                            
               Under section 7491(c), the Commissioner has the burden of              
          production in any court proceeding with respect to the liability            
          of any individual for any penalty or addition to tax.  Higbee v.            






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