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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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