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In the case of a child of divorced parents, section
152(e)(1) provides as a general rule that the child shall be
treated as receiving over half of his or her support from the
custodial parent. 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. Thus, in the
present case, because Eileen had legal custody of RW and MW
throughout 2001 (as well as physical custody throughout the year)
she was the custodial parent in 2001, and petitioner was the
noncustodial parent.
Section 152(e)(2) provides an exception to the general rule
of section 152(e)(1). Pursuant to that exception, the child
shall be treated as receiving over half of his or her support
from the noncustodial parent if:
(A) the custodial parent signs a written declaration
(in such manner and form as the Secretary may by regulations
prescribe) that such custodial parent will not claim such
child as a dependent for any taxable year beginning in such
calendar year, and
(B) the noncustodial parent attaches such written
declaration to the noncustodial parent’s return for the
taxable year beginning during such calendar year.
See sec. 1.152-4T(a), Q&A-3, Temporary Income Tax Regs., 49 Fed.
Reg. 34459 (Aug. 31, 1984).
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Last modified: May 25, 2011