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of the calendar year, section 152(e)(1) provides as a general
rule that the child shall be treated as receiving over half of
his or her support during the calendar year from the parent
having custody for the greater portion of the calendar year (the
custodial parent). Although there are exceptions to this general
rule, none of the exceptions apply to the present case. See sec.
152(e)(2), (3), and (4).
As relevant herein, section 1.152-4(b), Income Tax Regs.,
provides that when there is no decree or agreement establishing
who has custody, the parent who has "physical custody of the
child for the greater portion of the calendar year" will be
deemed to be the custodial parent.
There is no evidence in the record that there was a custody
agreement between petitioner and Ms. Johnson. In the absence of
a custody agreement, the Court must look to the division of
physical custody. Id. Petitioner testified that his children
spent the weekends with him and the weekdays with their mother.
Because Ms. Johnson had physical custody of the children for a
greater portion of the calendar year, she is deemed to be the
custodial parent, not petitioner. Therefore, petitioner is not
entitled to the dependency exemption deduction for either of the
children. In light of the foregoing, the Court sustains
respondent's determination on this issue.
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Last modified: May 25, 2011