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from the parent having custody for a greater portion of the
calendar year (custodial parent). Section 152(e)(2) provides an
exception to this rule where the custodial parent releases his
claim to the exemption for the year.
To determine who has "custody" for purposes of section
152(e), the regulations provide that custody is determined by the
terms of the most recent divorce decree or subsequent divorce
decree. Sec. 1.152-4(b), Income Tax Regs. Where parents have
joint custody under the divorce decree, the regulations further
provide that 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. For a
parent to be considered as having "physical custody", the child,
generally, must reside with the parent. See White v.
Commissioner, T.C. Memo. 1996-438; Whitaker v. Commissioner, T.C.
Memo. 1988-418.
In 1992, petitioner's children received over half of their
support from their parents, and their parents lived apart at all
times during the last 6 months of 1992. Under the subsequent
divorce decree entered in 1994, petitioner and Mrs. Condello had
joint custody of the children. During 1992, the children resided
with Mrs. Condello, and, therefore, Mrs. Condello had physical
custody of the children. White v. Commissioner, supra. We
conclude that during 1992 Mrs. Condello was the custodial parent
for purposes of section 152(e), and there is no evidence that
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