Keith A. Brettin - Page 5

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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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