Frank Planko - Page 10

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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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