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order dictates that Ms. O’Hara would have substantially more
hours per year of physical custody than would petitioner.
However, we need not determine whether the children are in the
physical custody of either parent while attending school because
petitioner’s hourly calendar, which is essentially identical to
Ms. O’Hara’s calendar except for the school issue, clearly
establishes that the children spent more time in the physical
custody of Ms. O’Hara. According to petitioner’s own calendar,
Ms. O’Hara maintained custody of the children for a greater
portion of 1998, although by only the slightest margin.
Accordingly, petitioner has failed to substantiate that he had
physical custody of the children for a greater portion of 1998.
Since Ms. O’Hara had physical custody of the children for a
greater portion of 1998 than did petitioner, she is the custodial
parent, and petitioner is the noncustodial parent for purposes of
section 152(e). Thus, petitioner is allowed the dependency
exemption deductions only if one of the three exceptions in
section 152(e) is met. However, none of the exceptions apply.
Petitioner failed to attach a signed written declaration to his
tax return, no multiple support agreement exists, and no
qualified pre-1985 instrument exists. Therefore, petitioner is
not entitled to a dependency exemption deduction for either of
the children for the year at issue.
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Last modified: May 25, 2011