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It matters not whether we accept petitioner’s or Ms.
DiBaccari’s version of events. Under either version, the
children resided with one or the other for slightly more or
slightly less than 50 percent of the year. Furthermore, to the
extent that the near equal split contemplated in the schedule set
forth in the settlement agreement was upset by minor variances,
those variances might very well be ignored in deciding which
residence was the children’s principal place of abode during
2003. See sec. 1.2-2(c), Income Tax Regs.
Obviously, where the children resided during 2003 must be
considered in establishing their principal place of abode for
that year. Nevertheless, petitioner and Ms. DiBiccari expressly
agreed in the separation agreement that “the children shall
reside primarily” with her. If the children resided at
petitioner’s residence for a substantially longer portion of
2003, then we would attach little significance to this agreement.
As we view the matter, because time spent by the children at
competing locations was so close to being equal, the above-quoted
express language in the separation agreement constrains us to
find that petitioner’s residence was not the principal place of
abode of either of his children for more than one-half of 2003.
It follows that petitioner does not qualify as a head of
household and is not entitled to an earned income credit for that
year. Respondent’s adjustments to that end are sustained.
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