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Ms. Gigletti left the family household around October 1993.
A divorce was granted on July 31, 1995. The State judge issued a
Memorandum of Decision (divorce decree) on July 31, 1995. The
divorce decree was signed neither by petitioner husband nor by
Ms. Gigletti. The divorce decree gave legal and physical custody
of BMC to Ms. Gigletti. On page 12 of the divorce decree the
State judge addressed the issue of an exemption as to BMC. The
paragraph reads as follows:
The defendant [petitioner husband] shall have the right to
claim the minor child [BMC] as an exemption for federal
and state income tax purposes for each calendar year in
which he is current at the end of such calendar year for his
support payments.
On or about March 3, 2002, petitioners filed their Form
1040, U.S. Individual Income Tax Return, for the 2001 taxable
year. 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 Ms.
Gigletti stating that she was releasing her claim to exemption of
BMC. Petitioner husband testified that he tried to get Ms.
Gigletti to sign a Form 8332, but she refused to do so.
In the 2001 return, petitioners claimed exemption deductions
for two dependents, one of whom, BMC, was a child of the marriage
with Ms. Gigletti. The second child claimed was MJC; this
dependent is not at issue in the present case. Respondent
allowed the exemption and child tax credit with regard to MJC.
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