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divorce decree which provided that petitioner would be entitled
to claim the children as dependents if Mrs. Freimark did not
“benefit” from the use of the deduction. We need not and do not
consider the contingency described in the divorce decree. As
described above, section 152(e) provides that the custodial
parent is entitled to the exemption unless the noncustodial
parent fits within one of the exceptions. We previously
explained that petitioners do not come within the exception under
section 152(e)(2). Petitioners do not fit within any of the
other exceptions.3
For the reasons set forth herein, respondent’s determination
is sustained.
Reviewed and adopted as the report of the Small Tax Case
Division.
Decision will be entered
for respondent.
3 While sec. 152(e)(4) permits a noncustodial parent to
claim an exemption under specific circumstances, said section
applies only to qualified pre-1985 instruments. The divorce
decree was entered in 1997.
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