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on whether petitioner had physical custody of the children for
the greater portion of 2003. See McCullar v. Commissioner, T.C.
Memo. 2003-272; sec. 1.152-4(b), Income Tax Regs.
In support of her contention, petitioner relies on her day-
planner that was introduced into evidence. In the day-planner,
petitioner placed a “K” (for “kids”) on each day that she had
custody of the children and then numbered each such mark
sequentially. The day-planner contained 195 “K” marks.7
Petitioner therefore asserts that she had physical custody of the
children for 195 days in 2003, which is more than half of the
year.
At the center of this dispute is how petitioner and Mr.
Litton quantified the time that the children spent with
petitioner. In particular, how the parties quantified the Sunday
of the first, third, and fifth weekend. Petitioner quantified
physical custody in terms of “days” that the children were in her
physical custody; that is, Tuesday, Thursday, and the first,
third, and fifth Friday, Saturday, and Sunday weekend. Although
petitioner and Mr. Litton dispute whether the children spent the
7 At trial, petitioner testified that she had custody of
the children for “193 days” in 2003. In contrast, she wrote “196
days” in the margin of the day-planner as the total number of
custody days for 2003. We regard the inconsistences among her
custody totals as insignificant. After close inspection of the
day-planner, although it appears that petitioner miscounted one
day (i.e., Nov. 14 was marked as day 165 and Nov. 15 was marked
as day 167), there were a total of 195 “K” marks in the day-
planner.
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