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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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Last modified: May 25, 2011