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physical custody of them for the weekend. Furthermore, Mr.
Litton testified that during the summer and other breaks when the
children did not have school on Monday, the children frequently
spent Sunday night with petitioner.
The record establishes that the children spent 167 non-
Sunday nights with petitioner and sufficiently more than half of
the 28 Sunday nights for such weekends that petitioner had
physical custody of them to constitute more than half of the 365
nights of the year. On balance, and in light of the facts and
circumstances of this case, we conclude that the children spent
more than 50 percent of the time with petitioner. Therefore, we
hold under section 152(e)(1) that petitioner had physical custody
of the children for the greater portion of 2003. Accordingly,
petitioner is entitled to dependency exemption deductions for her
son and daughter in the taxable year 2003.9 Respondent’s
determination on this issue is not sustained.
9 At trial, petitioner and Mr. Litton appeared to have a
civil relationship, and they seemed to cooperate well in respect
to deviating from the Standard Possession Order in the best
interests of the children. For future years, the parties
appeared to entertain the notion of properly completing and
executing a Form 8332 releasing one’s claim to the dependency
exemptions and perhaps to alternate every year, or to split the
dependency exemption deductions evenly between each parent each
year. If the respective party were to attach such form to his or
her return, then, at least for the taxable year or years subject
to such form, the parties might succeed in avoiding the issues
that have arisen in the present case. Otherwise, we foresee that
respondent may disallow the dependency exemption deductions to
both petitioner and Mr. Litton and require both of them to file
petitions in this Court for a determination of who had custody
for the greater portion of a particular taxable year.
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