- 10 - 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.Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 Next
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