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section 152(e)(1)(A)(i), or that there was no “written separation
agreement” under section 152(e)(1)(A)(ii). Respondent did not
present evidence that anyone, including Ms. Richards, other than
petitioner provided any support for the children. See sec.
1.152-1(a)(2)(i), Income Tax Regs.
Respondent did not present evidence that Matthew did not
live with petitioner for a greater portion of the year and,
therefore, has not met his burden of proof. Accordingly,
petitioner was the custodial parent for Matthew in 1997 under
section 152(e)(1). Therefore, petitioner provided over half of
Matthew’s support, and he is entitled to a dependency exemption
deduction for Matthew for 1997. See sec. 152(a)(1).
Ms. Richards was the custodial parent for Shannon and Brigid
in 1997. As previously indicated, petitioner, as the
noncustodial parent, would be entitled to the dependency
exemption deductions for Shannon and Brigid only if he attached
the proper waiver signed by Ms. Richards to his return.
Respondent neither asserted nor presented evidence that
petitioner failed to attach a waiver signed by Ms. Richards to
his return as required by section 152(e)(2). While we recognize
that proof of a negative may be difficult, a copy of a transcript
indicating that no such waiver was attached to the 1997 return
would have provided some evidence on this matter. Cf. Kessler v.
Commissioner, T.C. Memo. 1977-117 (determining that the taxpayer,
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