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final divorce decree, Ernestine had both physical and legal
custody of BB during taxable year 2001.
On or about February 19, 2002, petitioners filed their Form
1040, U.S. Individual Income Tax Return, for the 2001 taxable
year. In their return, petitioners claimed BB as their dependent
and claimed the resulting dependency exemption deduction, as well
as the resulting child tax credit. There was no attachment
regarding any waiver or declaration, such as a Form 8332, Release
of Claim to Exemption for Child of Divorced or Separated Parents,
executed by Ernestine stating that she was releasing her claim to
the exemption deduction for BB. In fact, Ernestine at no time
gave petitioner verbal or written permission to claim BB as his
dependent for the taxable year 2001.
Discussion
In general, the Commissioner’s determination set forth in a
notice of deficiency is presumed correct, and the taxpayer bears
the burden of showing that the determination is in error. Rule
142(a); Welch v. Helvering, 290 U.S. 111, 115 (1933). As one
exception to this rule, section 7491(a) places upon the
Commissioner the burden of proof with respect to any factual
issue relating to liability for tax if the taxpayer maintained
adequate records, satisfied the substantiation requirements,
cooperated with the Commissioner, and introduced during the Court
proceeding credible evidence with respect to the factual issue.
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Last modified: May 25, 2011