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applies to his situation. Petitioner bases his argument on the
fact that he has never been divorced nor legally separated from
Ms. Peterson.
However, petitioner is mistaken. Section 152(e)(1)(A)(iii)
applies to any parents, regardless of marital status, where the
parents “live apart at all times during the last 6 months of the
calendar year” and, pursuant to section 152(e)(1)(B), the child
is in the custody of one parent for more than one-half of the
calendar year. King v. Commissioner, 121 T.C. 245, 250-251
(2003). Therefore, even though petitioner has never been
divorced or legally separated from or married to Ms. Peterson, on
the basis of his testimony that he lived separately from Ms.
Peterson for the entire taxable year 2001, section
152(e)(1)(A)(iii) controls here. With this proposition in mind,
we must determine whether petitioner or Ms. Peterson was the
custodial parent in taxable year 2001.
Section 1.152-4(b), Income Tax Regs., provides that custody
“will be determined by the terms of the most recent decree” if
there is one in effect. In the event of so-called split or joint
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.” Id.
In the present case, the 1999 Order of the Superior Court in
New Haven, Connecticut, is the most recent pronouncement on the
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