William Maher - Page 10




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          Regs., provides that custody is “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, as is the             
          case herein, custody is “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.”  Id.                             
               We have repeatedly held that we look to where the child                
          resided to determine which parent had physical custody for                  
          purposes of section 152(e)(1).  Neal v. Commissioner, T.C. Memo.            
          1999-97; Otmishi v. Commissioner, T.C. Memo. 1980-472; Dumke v.             
          Commissioner, T.C. Memo. 1975-91, affd. without published opinion           
          524 F.2d 1230 (5th Cir. 1975); see also Meyer v. Commissioner,              
          T.C. Memo. 2003-12; Horn v. Commissioner, T.C. Memo. 2002-290;              
          Nieto v. Commissioner, T.C. Memo. 1992-296.  Even if the custody            
          decree grants physical custody to one parent, we have held that             
          this parent is not entitled to a dependency exemption when the              
          children did not live with this parent for most of the year.                
          Otmishi v. Commissioner, supra; Dumke v. Commissioner, supra.               
               We found as a fact that Kristen and Billy resided with Mr.             
          Maher for most of 1998.  Therefore, for purposes of section                 
          152(e), Mr. Maher is the custodial parent.  Accordingly, Mr.                
          Maher is entitled to claim exemptions for both Kristen and Billy            
          for 1998.                                                                   






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