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There is no dispute that this rule is applicable in this case.
In applying section 152(e)(1) custody “will be determined by the
terms of the most recent decree of divorce or separate
maintenance, or subsequent custody decree”. Sec. 1.152-4(b),
Income Tax Regs. (emphasis added).
The “noncustodial parent” may claim the child as a dependent
if any one of the following statutory exceptions is satisfied:
(1) Pursuant to section 152(e)(2), the custodial parent signs a
written declaration that such custodial parent will not claim
such child as a dependent, and the noncustodial parent attaches
such written declaration to the noncustodial parent’s return for
the taxable year; (2) pursuant to section 152(e)(3), there is a
multiple support agreement between the parties as provided in
section 152(c); or (3) pursuant to section 152(e)(4), there is a
qualified pre-1985 instrument providing that the noncustodial
parent shall be entitled to any deduction allowable under section
151 for such child. Sec. 152(e). The declaration required under
section 152(e)(2) must be made either on a completed Form 8332 or
on a statement conforming to the substance of Form 8332. See
Miller v. Commissioner, 114 T.C. 184, 190 (2000), affd. on
another ground sub nom. Lovejoy v. Commissioner, 293 F.3d 1208
(10th Cir. 2002); sec. 1.152-4T(a), Q&A-3, Temporary Income Tax
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