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proving that the Commissioner's determination of income tax
deficiencies is incorrect. Rule 142(a); Welch v. Helvering, 290
U.S. 111, 115 (1933). Under section 7491, the burden of proof
with respect to factual issues relevant to ascertaining the tax
liability of the taxpayer may shift to the Commissioner in
certain circumstances. Higbee v. Commissioner, 116 T.C. 438,
440-441 (2001). The issues in this case are questions of law,
and the Court decides the issues without regard to the burden of
proof.
There is no dispute that petitioner's child is a "dependent"
as defined in section 152 and the child received, during the year
at issue, over half of his support from his parents. The issue
here is which parent is entitled to the dependency exemption
deduction.
Where the parents are divorced and a child is in the custody
of one or both parents for more than one-half of the calendar
year, section 152(e)(1) allows the dependency exemption deduction
to the "custodial parent". Section 1.152-4(b), Income Tax Regs.,
provides generally that the custodial parent is determined by the
most recent decree of divorce in effect between the parties. In
this case, there is no dispute that Mrs. Brettin was the
custodial parent for their son. The noncustodial parent,
however, is allowed a dependency exemption deduction under
section 152(e)(2) if the custodial parent signs a written
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Last modified: May 25, 2011