James T. and Rebecca S. Werther - Page 6

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               In the case of a child of divorced parents, section                    
          152(e)(1) provides as a general rule that the child shall be                
          treated as receiving over half of his or her support from the               
          custodial parent.  Custody is determined by the terms of the most           
          recent decree of divorce or subsequent custody decree, and “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.”  Sec. 1.152-4(b), Income Tax Regs.  Thus, in the            
          present case, because Eileen had legal custody of RW and MW                 
          throughout 2001 (as well as physical custody throughout the year)           
          she was the custodial parent in 2001, and petitioner was the                
          noncustodial parent.                                                        
               Section 152(e)(2) provides an exception to the general rule            
          of section 152(e)(1).  Pursuant to that exception, the child                
          shall be treated as receiving over half of his or her support               
          from the noncustodial parent if:                                            
                    (A) the custodial parent signs a written declaration              
               (in such manner and form as the Secretary may by regulations           
               prescribe) that such custodial parent will not claim such              
               child as a dependent for any taxable year beginning in such            
               calendar year, and                                                     
                    (B) the noncustodial parent attaches such written                 
               declaration to the noncustodial parent’s return for the                
               taxable year beginning during such calendar year.                      
          See sec. 1.152-4T(a), Q&A-3, Temporary Income Tax Regs., 49 Fed.            
          Reg. 34459 (Aug. 31, 1984).                                                 








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