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of divorce or separate maintenance under section 152(e)(1)(A)(i),
or separated under a “written separation agreement” under section
152(e)(1)(A)(ii),3 and the child is in the custody of one or both
parents for more than one-half of the calendar year, then such
child shall be treated as receiving over one-half of his support
from the parent having custody for a greater portion of the
calendar year. Sec. 152(e)(1).
The custodial parent is the parent who has custody of a
child for the greater portion of the year. Id. The noncustodial
parent may claim the dependency exemption deduction, and a
dependent may be treated as having received over one-half of his
support from the noncustodial parent, if the custodial parent
signs a written statement that she will not claim the child as a
dependent for the taxable year, under section 152(e)(2)(A). The
noncustodial parent must then attach this waiver to his return.
Sec. 152(e)(2)(B); sec. 1.152-4T(a), Q&A-3, Temporary Income Tax
Regs., 49 Fed. Reg. 34459 (Aug. 31, 1984).
Respondent argues (and has the burden of proving) that
petitioner is not entitled to the dependency exemption deductions
claimed for his three children. Respondent has not argued that
petitioner and Ms. Richards were not legally separated under
3 Sec. 152(e)(1)(A)(iii) concerns parents living apart at
all times during the last 6 months of the taxable year. This
section is not applicable because petitioner was not living apart
from Ms. Richards at all times during the last 6 months of 1997.
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