- 4 - 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 50Page: Previous 1 2 3 4 5 6 7 8 9 Next
Last modified: May 25, 2011