- 10 - 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.Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 Next
Last modified: May 25, 2011