Walter D. and Pauleana L. Mace - Page 7

                                        - 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.                     




Page:  Previous  1  2  3  4  5  6  7  8  Next

Last modified: May 25, 2011