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Discussion
As a general rule, the Commissioner’s determinations in the
notice of deficiency are presumed correct, and the burden of
proving an error is on the taxpayer. Rule 142(a); Welch v.
Helvering, 290 U.S. 111, 115 (1933).
Custody is determined by the most recent divorce or custody
decree. Sec. 1.152-4(b), Income Tax Regs. A noncustodial parent
may be entitled to a dependency exemption deduction under section
151 if the noncustodial parent attaches to his or her tax return
a Form 8332 or similar written declaration, signed by the
custodial parent, stating that the custodial parent will not
claim the child as a dependent for the calendar year. Sec.
152(e)(2); Miller v. Commissioner, 114 T.C. 184 (2000).
The Florida circuit court’s judgment granted primary
physical custody to Mr. Gibson’s former wife. Petitioners, as
noncustodial parents, did not attach to their 2003 return a Form
8332 or similar written declaration by Mr. Gibson’s former wife
that she would not claim the children as dependents.
At trial, petitioners submitted a document entitled
“Establishment of Fact” in which they cited the provisions of
sections 151 and 152 but argued that these statutory provisions
are unconstitutional because biological fathers involved in
divorce typically do not obtain custody of their children when
the marriage ends and yet typically contribute more than 50
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Last modified: May 25, 2011