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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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