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B. Arguments of the Parties
Respondent argues that, under the general rule of section
1.152-4(b), Income Tax Regs., we must look to the divorce decree
to determine who (as between petitioner and Ms. McCullar) had
custody of Emily for the greater portion of 1998. Respondent
calculates (without elaborate explanation) that, under the
divorce decree, Emily was to be with Ms. McCullar for 4,996 hours
in (or approximately 57 percent of) 1998, while she was to be
with petitioner for 3,764 hours in (or approximately 43 percent
of) 1998. On that basis, respondent concludes that Ms. McCullar
was the custodial parent in 1998.
Petitioner argues that, because the divorce decree creates a
“split custody” arrangement within the meaning of the second
sentence of section 1.152-4(b), Income Tax Regs., the Court must
determine who had physical custody of Emily for the greater
portion of 1998. Based on the log introduced into evidence,
petitioner calculates that he had physical custody of Emily for
54 percent of 1998, making him the custodial parent for that
year. Respondent counters that the split custody rule in the
regulations is not applicable, since split custody refers to
situations where the divorce decree, while providing for shared
custody, does not specify which parent is entitled to custody for
the greater portion of the year. Respondent further contends
that, even if the split custody rule is applicable, the record
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