- 4 - in the divorce proceeding. As relevant here, in the separation agreement, petitioner and Ms. DiBiccari agreed: (1) To share “legal custody” over the children, and (2) that the “children shall reside primarily” with Ms. DiBiccari. The separation agreement gives petitioner “the right to have the children” for a total of 182 days during the year, which days are determined by a specific schedule included in the agreement.3 As it turned out, for various reasons petitioner and Ms. DiBiccari did not strictly adhere to the schedule set forth in the separation agreement, and at any time during the year the children, or either of them, might or might not have been where the schedule suggested each should be. Petitioner maintained a calendar on which he recorded the days that each of the children was with him at his residence, as did Ms. DiBiccari.4 At all times relevant, for Federal income tax purposes, petitioner and Ms. DiBiccari considered the latter as the children’s custodial parent. See sec. 152(e). Petitioner filed his timely 2003 Federal income tax return as a head of household. The taxable income and income tax liability shown on that return take into account the standard deduction attributable to that filing status. The refund claimed 3 At trial petitioner equated those 182 days during 2003 as “50% of the time”, which, of course, is not quite right as there were 365 days during that year. 4 Neither calendar was made part of the record.Page: Previous 1 2 3 4 5 6 7 8 9 Next
Last modified: May 25, 2011