- 4 -
Section 1.152-4(b), Income Tax Regs., provides that custody
will be determined by the terms of the most recent decree of
divorce * * *. * * * [I]f * * * a decree * * * [does not
establish] who has custody, * * * “custody” will be deemed
to be with the parent who, as between both parents, has the
physical custody of the child for the greater portion of the
calendar year.
While section 152(e)(2) provides that a custodial parent under
section 152(e)(1) may agree that the noncustodial parent may
claim a dependency exemption, the requirements of that exception
are not satisfied here.
Respondent focuses on the original divorce decree that
provided that the primary physical residence for the children
would be with the former wife. But, as far as this record is
concerned, that decree was not the most recent court action with
respect to the custody issue as it related to all the children.
In January 1993, the court recognized that one of the children
(Candace) was living with petitioner and approved that
arrangement.
We realize that there may have been other custodial
arrangements during the years that would render the January 1993,
court order stale, but, by the same token, such arrangements
would also render the original divorce decree stale. On the
other hand, if we conclude that the decree does not establish
which parent had custody, it seems quite apparent from the
testimonies of petitioner and his former wife that petitioner had
physical custody of one of the children for the greater portion
Page: Previous 1 2 3 4 5 6 Next
Last modified: May 25, 2011