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Petitioner claims that she was Shelby’s custodial parent for
a greater portion of each year in issue and is therefore entitled
to the dependency exemption deductions here in dispute. In
support of her position, petitioner relies upon section 1.152-
4(b), Income Tax Regs., which states:
(b) Custody. “Custody”, for purposes of this
section, will be determined by the terms of the most
recent decree of divorce or separate maintenance, or
subsequent custody decree, or, if none, a written
separation agreement. In the event of so-called
“split” custody, or if neither a decree or agreement
establishes who has custody, or if the validity or
continuing effect of such decree or agreement is
uncertain by reason of proceedings pending on the last
day of the calendar year, “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.
Petitioner claims that she had “physical” custody of Shelby
for a greater portion of each year in issue and proceeds (as does
respondent for that matter) as though the actual, physical
custody of Shelby must be determined on a day-by-day basis for
each day of the years in issue. Presumably, petitioner’s
position in this case is based upon the reference to “split
custody” in the regulation. As petitioner construes the
regulation, in a “split”, joint, or shared custody arrangement,
the express terms of a custody instrument (written agreement or
order) establishing legal and/or physical custody are, in effect,
ignored and actual, physical custody must be determined even
though the custody instrument specifically allocates physical
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