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Petitioner filed a joint 1991 Federal income tax return with
Janice R. McCarthy. The three children of petitioner's former
marriage were claimed as dependents on the return. No
declaration of the custodial parent was attached to the 1991
return.
In the notice of deficiency, respondent disallowed the
claimed dependency exemptions having determined that petitioner,
as the noncustodial parent, is not entitled to claim the
exemptions in the absence of a written declaration from the
custodial parent. Petitioner argues that he claimed the children
as dependents in prior years and respondent did not disallow said
claim. He further argues that Rosalie McCarthy wrongfully
refused to provide a written declaration pursuant to the
separation agreement.
Generally, section 152(e)(1) provides that the custodial
parent is entitled to the exemption for children of divorced or
separated parents. There are three exceptions to the general
rule. Section 152(e)(2) provides an exception if the custodial
parent signs a written declaration that the custodial parent will
not claim such child as a dependent for any taxable year
beginning in such calendar year, and the noncustodial parent
attaches such written declaration to the noncustodial parent's
return. Section 152(e)(3) allows a child to be claimed as a
dependent by a taxpayer other than the custodial parent if there
is a multiple support agreement permitting same. A further
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Last modified: May 25, 2011