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For purposes of section 152(e), custody is determined by the
terms of the most recent custody decree, or, if none, by the
terms of a written separation agreement, in effect at the
relevant time. Sec. 1.152-4(b), Income Tax Regs. In this case
there is neither a custody decree nor a written separation
agreement that establishes custody of petitioner’s daughter for
purposes of section 152(e). The parties agree that for purposes
of that section, the parent who had physical custody of
petitioner’s daughter for a greater portion of 1998 is treated as
her custodial parent for that year. See id. However, the
parties disagree over the year that petitioner’s daughter moved
from petitioner’s house to her mother’s house. According to
petitioners, that event occurred in 2000; according to
respondent, that event occurred in June 1998.
Both petitioners testified credibly that, except for
weekends and the incident that occurred in June of that year,
petitioner’s daughter lived with petitioner during the entire
1998 year. Both described the living arrangements of
petitioner’s daughter that followed petitioner’s divorce from Ms.
Caddle, and each referred to specific school events involving
petitioner’s daughter (e.g., the school year that she was on the
track team, the school year that she participated in JROTC, etc.)
that allowed them to determine a time frame with confidence.
Furthermore, petitioner explained that his daughter moved in with
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Last modified: May 25, 2011