David B. and Sharon J. D'Amours - Page 11

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               In the present case, Ms. Pond, as the custodial parent, did            
          not sign a Form 8332 or any written declaration or statement                
          agreeing not to claim the exemptions for ND and BD, and no such             
          form, declaration, or statement was attached to petitioners’                
          return for the year in issue.                                               
               However, petitioner argues that the separation agreement in            
          the Judgment of Divorce Nisi, which ended his marriage with Ms.             
          Pond, by its terms grants him the right to claim ND and BD as               
          dependents for Federal and State income tax purposes.                       
               We note that even if the provision of the separation                   
          agreement regarding dependency exemptions is controlling in this            
          case, Ms. Pond would be entitled to one dependency exemption due            
          to the fact that she earned in excess of $20,000 in the taxable             
          year 2002.                                                                  
               Although the separation agreement, by and through its own              
          terms, provides that petitioner is entitled to a dependency                 
          exemption for one of the claimed minor dependents, it is well               
          settled that State courts by their decisions cannot determine               
          issues of Federal tax law.  See 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; Nieto v.                   
          Commissioner, T.C. Memo. 1992-296.                                          
               We find that the separation agreement, in the present case,            
          does not “conform to the substance” of Form 8332.  See sec.                 






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