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(B) the noncustodial parent attaches such
written declaration to the noncustodial parent’s
return for the taxable year beginning during such
calendar year.
For purposes of this subsection, the term “noncustodial
parent” means the parent who is not the custodial parent.
Under section 152(e) as amended, the custodial parent2 is
entitled to claim the dependency exemption with respect to his or
her child unless one of three exceptions applies, none of which
are at issue in the case at bar. See sec. 152(e); Hughes v.
Commissioner, T.C. Memo. 2000-143; Brignac v. Commissioner, T.C.
Memo. 1999-387; sec. 1.152-4T(a), Q&A-2, Temporary Income Tax
Regs., 49 Fed. Reg. 34459 (Aug. 31, 1984). Custody is determined
by the terms of the most recent decree of divorce or subsequent
custody decree, and “will be deemed to be with the parent who, as
between both parents, has the physical custody of the child for
the greater portion of the calendar year.” Sec. 1.152-4(b),
Income Tax Regs.
Petitioner testified at trial that during taxable year 2001,
BB resided with him during the entire summer of 2001 and on
weekends and holidays during the school year. Petitioner did not
present any documentation to substantiate such a claim.
2In this opinion, we refer to the parent having physical
custody for the greater part of the year as the custodial parent
and to the parent who is not the custodial parent as the
noncustodial parent. See sec. 152(e) (flush language).
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