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to convince us that, in the context of section 1.152-4(b), Income
Tax Regs., such term means anything other than the joint or
shared custody of a single child by divorced or separated
parents, with the dependency exemption going to the parent who
has actual, physical custody (and not just the right to custody)
for the greater portion of the year. See, e.g., Dail v.
Commissioner, T.C. Memo. 2003-211; Maher v. Commissioner, T.C.
Memo. 2003-85. Of course, respondent is free, within the
confines of his rulemaking authority, to reword the 30-year-old
regulation.
We turn now to the issue of which parent had physical
custody of Emily for the greater portion of 1998. Petitioner’s
log gives detailed descriptions about the time he spent with and
without his daughter each day of 1998, written in different ink
and typed in different fonts. Respondent argues that the log
contains errors. Given the testimony of both petitioner and his
ex-wife, we have determined that petitioner is a credible witness
and that his log is valid and not fabricated. After giving
consideration to the dates petitioner spent with his daughter
that respondent claims are in error, petitioner still spent over
1(...continued)
upbringing at all times (i.e., regardless of which parent has
physical custody of the child at any given time). See Giggetts,
Annotation, “Application of Child-Support Guidelines to Cases of
Joint-, Split-, or Similar Shared-Custody Arrangements,” 57
A.L.R.5th 389 (1998); Benson, supra at 64; see also Black’s Law
Dictionary, supra at 390 (defining “joint custody”).
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