McClure v. Comm'r

THORNTON, Judge: This case was heard pursuant to the provisions of section 7463 of the Internal Revenue Code in effect at the time the petition was filed. ¹ Pursuant to section 7463(b), the decision to be entered is not reviewable by any other court, and this opinion shall not be treated as precedent for any other case.

Respondent determined a $ 2,485 deficiency in petitioners' 2006 Federal income tax. After concessions, the sole issue for decision is whether petitioners are entitled to claim dependency exemption deductions for two children of Scott McClure (petitioner) by a previous marriage. ² When they petitioned the Court, petitioners resided in West Virginia.

In 1992 petitioner divorced Deanna Mason McClure. *180 The final divorce order awarded custody of their two young children to her and provided that petitioner would "have the benefit of the personal exemptions for the children on state and federal income taxes." The final order is not signed by petitioner or his former wife but is signed by their attorneys.

Throughout 2006 petitioner's former wife was the custodial parent of both children. On their joint 2006 Federal income tax return petitioners claimed dependency exemption deductions for the two children. Petitioners did not attach to their return Form 8332, Release of Claim to Exemption for Child of Divorced or Separated Parents. Respondent disallowed the dependency exemption deductions.

A taxpayer may claim a dependency exemption deduction for each dependent. Sec. 151(c). A divorced, noncustodial parent may claim a dependency exemption deduction for a child if certain conditions are met. One condition is that the custodial parent must sign a written declaration that he or she will not claim the child as a dependent; the noncustodial parent must attach the written declaration to his or her return on which the child is claimed as a dependent. Sec. 152(e)(2). The custodial parent *181 must make the written declaration "in such manner and form as the Secretary may by regulations prescribe". Id.

The regulations provide that the custodial parent may make the required declaration on Form 8332 or in another document that conforms to its substance. Sec. 1.152-4T(a), Q&A-3, Temporary Income Tax Regs., 49 Fed. Reg. 34459 (Aug. 31, 1984). Form 8332 requires, among other things, the signature of the custodial parent confirming his or her consent to releasing the dependency exemption to the noncustodial parent.

Petitioners do not dispute that they attached no Form 8332 to their 2006 return. They contend, however, that they attached a copy of the final divorce order to their return. The record is unclear on this point. In any event, the final divorce order does not conform to the substance of Form 8332 as required by the applicable regulations.

In Miller v. Commissioner, 114 T.C. 184, 190 (2000), affd. on other grounds sub nom. Lovejoy v. Commissioner, 293 F.3d 1208 (10th Cir. 2002), this Court held that the requirements of section 152(e)(2) were not met by the taxpayer's attaching to his return portions of divorce orders that were not signed by the custodial parent but were instead *182 signed by her attorney and then only as to "form". Id. at 192-193. The Court stated: "Satisfying the signature requirement is critical to the successful release of the dependency exemption within the meaning of section 152(e)(2)." Id. at 190.

Unlike the attorney's signature in Miller, the signature of Deanna Mason McClure's attorney on the final divorce order was not qualified as indicating approval only as to form. We do not believe, however, that this circumstance provides petitioners any greater relief. Form 8332 would have required Deanna Mason McClure's signature affirmatively indicating her consent to release the dependency exemption to petitioner. ^3*183 Without her signature, the final divorce order does not conform to the substance of Form 8332, as required by the regulations. ⁴

Petitioners rely upon instructions in Publication 501, Exemptions, Standard Deduction, and Filing Information, for use in preparing their 2006 return. Those instructions are consistent with our holding. The instructions indicate, at p. 11, that for tax year 2006 the noncustodial parent could satisfy the requirements of section 152(e) by attaching to his or her tax return, in lieu of a Form 8332, *184 certain pages of a divorce decree or separation agreement made after 1984. The instructions specify, however, that the noncustodial parent must attach all relevant pages of the divorce decree or separation agreement, including "The signature page with the other parent's signature". ⁵

Petitioners suggest that because they were allowed dependency exemption deductions for petitioner's children for earlier tax years, they should also be allowed the deductions for 2006. The record is vague as to what happened in earlier years, but the law is clear that respondent's allowing the deductions in earlier years does not estop him from denying them for 2006. See Easter v. Commissioner, 338 F.2d 968 (4th Cir. 1964), affg. T.C. Memo. 1964-58.

To reflect the foregoing and respondent's concessions,

Decision will be entered under Rule 155.