- 6 -
See Miller v. Commissioner, 114 T.C. 184 (2000); sec. 1.152-
4T(a), Q&A-3, Temporary Income Tax Regs., supra.5
Petitioners did not attach a written declaration, Internal
Revenue Service form, or other statement signed by the custodial
parent to their return. See sec. 152(e)(2)(A) and (B).
Petitioners, therefore, did not establish entitlement to the
dependency exemption deduction for the year in question. See
Paulson v. Commissioner, T.C. Memo. 1996-560.
Although the support order provides that petitioner is
entitled to the dependency exemption deduction, it cannot by its
own terms determine issues of Federal tax law. Commissioner v.
Tower, 327 U.S. 280 (1946); Kenfield v. United States, 783 F.2d
966 (10th Cir. 1986); Neal v. Commissioner, T.C. Memo. 1999-97;
5 Petitioner Pauleana L. Mace testified that petitioners
were told by the Internal Revenue Service that as a noncustodial
parent who was never married to the custodial parent petitioner
could not use Form 8332, but instead needed a Form 2120, Multiple
Support Declaration. Form 2120 is used for the claiming of
dependency exemptions where multiple taxpayers support a
dependent and where the taxpayer contributed over 10 percent of
the support of the claimed dependent. Sec. 152(c)(3). Sec.
152(c)(4) requires a written declaration for each person (other
than the taxpayer) who contributed over 10 percent of such
support that he or she will not claim the individual as a
dependent for the same taxable year. Sec. 1.152-3(c), Income Tax
Regs., provides that the written declaration may be made on Form
2120 or in a similar manner.
In light of this Court’s holding in King v. Commissioner,
121 T.C. 245, 250-251 (2003), a properly executed Form 8332 can
constitute the waiver of a custodial parent’s claim to the
dependency exemption deduction even where the parents were never
married to each other. Which form should have been used is not
at issue, as no form or statement signed by the custodial parent
was attached to petitioners’ return when they filed it.
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