Richard A. Mullen - Page 5

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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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