George H. Richards - Page 10

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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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