Amanda M. Beeghly - Page 8




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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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