Michael T. and Kathleen L. Schultheiss - Page 8

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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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