5
To decide who has "custody", section 1.152-4(b), Income Tax
Regs., provides that custody "will be determined by the terms of
the most recent decree of divorce" if there is one in effect.
Since petitioner's divorce decree grants custody of each of the
five children to his ex-wife, Grace Williams, she is considered
the children's "custodial parent" under section 152(e). As the
"noncustodial parent", petitioner is treated as providing over
half of a child's support and allowed to claim such child as a
dependent if any one of three statutory exceptions is met:
(1)(a) The custodial parent signs a written
declaration that such custodial parent will not claim
such child as a dependent, and
(b) the noncustodial parent attaches such written
declaration to the noncustodial parent's return for the
taxable year (section 152(e)(2));
(2) a multiple support agreement pursuant to section
152(c) determines support (section 152(e)(3)); or
(3)(a) a qualified pre-1985 instrument provides that
the noncustodial parent shall be entitled to any deduction
allowable under section 151 for such child, and
(b) the noncustodial parent provides at least $600 for
the support of such child during the calendar year (section
152(e)(4)).
A threshold requirement for the applicability of the special
rules of section 152(e) in the case of divorced parents is that
the parents must provide over one-half of the child's support.
Sec. 1.152-4(a), Income Tax Regs. Therefore, if a third party,
such as a Federal or State agency, were to provide 50 percent or
more of a child's support, neither parent would be entitled to
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Last modified: May 25, 2011