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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.
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Last modified: May 25, 2011