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allowing the dependency exemption deduction to be claimed by the
"custodial parent".
Section 1.152-4(b), Income Tax Regs., provides that custody
will be determined by the terms of the most recent decree of
divorce or separate maintenance, or subsequent custody decree,
or, if none, a written separation agreement. If neither a
divorce decree nor written separation agreement establishes who
has custody, custody will be deemed to be with the parent who has
physical custody of the child for the greater part of the
calendar year. In this case, the May 25, 1988, divorce decree
did not contain any provision regarding custody of the children.
Consequently, the custodial parent is the one who, between
petitioner and her former spouse, had physical custody for the
greater part of the year. In this respect, the court order of
May 16, 2000, establishes that petitioner's former spouse, John
Harris, had physical custody of the children from January 1999
and, therefore, was the custodial parent. Petitioner's former
spouse, therefore, is entitled to the dependency exemption
deduction for the two children under section 152(e)(1) unless one
of the exceptions of section 152(e)(2), (3), or (4) applies. The
only possible exception that conceivably could apply would be the
exception provided under section 152(e) relating to the release
of the claim to the exemption for the year by the custodial
parent. To satisfy the requirements of a release, the custodial
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