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Regs., 49 Fed. Reg. 34459 (Aug. 31, 1984).2
The divorce decree, in effect since 1997, granted Aguirre
sole custody of the children until the divorce court granted
petitioner temporary custody, in a subsequent custody decree,
actually issued on September 10, 1999, and purportedly effective
as of July 27, 1999.3 Although petitioner did not have physical
custody of the children, the child custody order provided
petitioner with temporary custody for the balance of the year
(July 27, 1999 to Dec. 31, 1999). Petitioner himself admitted:
“I don’t meet the six months criteria”. Since Aguirre had
custody for the greater portion of the year, Aguirre is the
custodial parent for 1999. Accordingly, Aguirre is entitled to
claim the dependency exemption deductions for the children unless
one of the three exceptions in section 152 applies. See Miller
v. Commissioner, supra at 188; see also Cafarelli v.
2 Temporary regulations are entitled to the same weight as
final regulations. Peterson Marital Trust v. Commissioner, 102
T.C. 790, 797 (1994), affd. 78 F.3d 795 (2d Cir. 1996); Truck &
Equip. Corp. v. Commissioner, 98 T.C. 141, 149 (1992).
3 The parties filed a Stipulation of Facts stating that the
change of custody took place on July 1, 1999. However, although
the hearing was conducted on July 1, 1999, the divorce court
issued the child custody order, transferring custody to
petitioner, on Sept. 10, 1999, nunc pro tunc to July 27, 1999.
While stipulations are not to be set aside lightly, the Court is
not bound by stipulations of fact that appear contrary to the
facts disclosed by the record. See Rule 91(e); Estate of Eddy v.
Commissioner, 115 T.C. 135, 137 n.4 (2000) (citing Blohm v.
Commissioner, 994 F.2d 1542, 1553 (11th Cir. 1993), affg. T.C.
Memo. 1991-636). At the earliest, the change of custody occurred
on July 27, 1999.
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