Lawrence Patrick O'Brien - Page 4

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          Individual Income Tax Return.  Petitioner did not attach anything           
          signed by Ms. O’Brien to his return at the time he filed.                   
          Respondent disallowed these dependency exemption deductions and             
          issued a notice of deficiency.  Respondent has conceded that                
          petitioner was the custodial parent for one of the claimed                  
          children in 2001.  Petitioner was not, however, the custodial               
          parent of the other two children in 2001.  Petitioner argues that           
          even though he is the noncustodial parent of these two children,            
          he is entitled to the dependency exemption deductions under the             
          terms of his divorce decree.                                                
          A.   Dependency Exemption Deduction                                         
               Sections 151 and 152 provide that a taxpayer is entitled to            
          deduct an exemption for a dependent if the taxpayer provides over           
          half of the support for the dependent.  Under section 152(e)(1),            
          in the case of a minor dependent whose parents are divorced,                
          separated under a written agreement, or who have lived apart at             
          all times during the last 6 months of the calendar year, and                
          together provide over half of the support for the minor                     
          dependent, the parent having custody for a greater portion of the           
          calendar year (custodial parent) generally shall be treated as              
          providing over half of the support for the minor dependent.                 

               2    We decide the issue in this case without regard to the            
          burden of proof.  See Higbee v. Commissioner, 116 T.C. 438                  

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