Richard A. Mullen - Page 8

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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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