Robert James Mentzel, Jr. - Page 8

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          out in preparation for trial rather than during the year in                 
          issue:  No other notations appear on the calendar, indicating it            
          likely was not used as a general calendar during that year.                 
          Furthermore, the accuracy of the calendar is questionable because           
          it fails to distinguish between those days on which petitioner              
          had custody for the majority of the day and those days on which             
          he had custody for only a few hours; according to the divorce               
          decree and petitioner’s own testimony this would have happened on           
          many occasions.  We do not find this calendar to be credible                
          evidence of the amount of time petitioner had physical custody of           
          Robert during 1998.                                                         
               The terms of the divorce decree, after accounting for the              
          time Robert would have been in school and in child care, splits             
          the physical custody of Robert nearly equally between petitioner            
          and Ms. Mentzel.  Understandably, the record in this case fails             
          to establish the exact number of days each of them actually spent           
          with Robert.  However, because petitioner has failed to provide             
          credible evidence regarding this issue, the burden of proof                 
          remains on him to show respondent’s determinations to be in                 
          error.  Sec. 7491(a)(1); Rule 142(a).  Petitioner has failed to             
          show that he was Robert’s custodial parent during 1998, and                 
          petitioner did not attach to his return a written declaration               
          signed by Ms. Mentzel.  Thus, he is not entitled to the                     
          dependency exemption deduction pursuant to the special rules of             






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