Gary Lyle Gibson and Mirian Julia Alves - Page 5

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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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