George H. Richards - Page 9

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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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Last modified: May 25, 2011