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In the case of a child of divorced parents, section
152(e)(1) provides that if a child receives over half of his
support from parents who are divorced under a decree of divorce
and the child is in the custody of one or both of his parents for
more than one-half of the year, then the child will be treated as
receiving over half of his support from the parent having custody
for a greater portion of the calendar year. The term "custody"
is "determined by the terms of the most recent decree of
divorce". Sec. 1.152-4(b), Income Tax Regs. Because the divorce
decree granted petitioner's former wife primary physical custody
of the children, she is considered their "custodial parent" under
section 152(e). See Cafarelli v. Commissioner, T.C. Memo. 1994-
265.
Petitioner contends that because he was in compliance with
the terms of the divorce decree, as modified by the agreement to
amend decree, he is entitled to the claimed deductions. The
Court, however, need not discuss the merits of this argument
because petitioner, as the noncustodial parent, did not abide by
the statutory requirements as explained below.
The requirements of section 152(e) must be met regardless of
the language of the State court divorce decree. See Miller v.
Commissioner, 114 T.C. 184 (2000), affd. sub nom. Lovejoy v.
Commissioner, 293 F.3d 1208 (10th Cir. 2002). As the
"noncustodial parent", petitioner is allowed to claim his
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Last modified: May 25, 2011