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Dunn v. Commissioner, 70 T.C. 361 (1978), affd. without published
opinion 601 F.2d 599 (7th Cir. 1979) (holding, under similar
circumstances, that the taxpayer could not file as a single
individual because a temporary order issued in connection with a
divorce proceeding did not render the taxpayer legally separated
in a State that specifically provided by statute for legal
separations).
As of the close of 1994, petitioner (1) was not divorced or
legally separated from Mrs. Correale, (2) was not separated from
Mrs. Correale pursuant to a written separation agreement, and (3)
did not live apart from Mrs. Correale at all times during the
last 6 months of that year. Consequently section 152(e) is not
applicable. There being no dispute that petitioner has satisfied
all of the other requirements necessary for the deductions under
sections 151 and 152, see INDOPCO, Inc. v. Commissioner, 503 U.S.
79, 84 (1992); New Colonial Ice Co. v. Helvering, 292 U.S. 435,
440 (1934), it follows, and we therefore hold, that petitioner is
entitled to the dependency exemption deductions here in dispute.
Because of our holding we need not address petitioner's
contention that he was not the noncustodial parent of Michael and
Robert.
To reflect the foregoing,
Decision will be
entered for petitioner.
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