Charles F. Smith - Page 6

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               Petitioner testified that I.T.D.S. lived with Ms. Gibson and           
          her husband during the school year and lived with petitioner for            
          12 weeks during the summer.  Petitioner visited I.T.D.S.                    
          approximately two weekends per month during the school year and             
          on holidays, and I.T.D.S. returned to Ms. Gibson approximately              
          two weekends per month during the summer.  Petitioner did not               
          give specific dates or maintain a log regarding when he had                 
          custody of I.T.D.S. and testified that he had “no formula” for              
          how he calculated the number of days he had custody of I.T.D.S.4            
          Petitioner’s vague testimony is insufficient to meet his burden             
          of proving that he had custody of I.T.D.S. for over half of 2003.           
          See Caputi v. Commissioner, T.C. Memo. 2004-283.  Even if                   
          petitioner did have custody of I.T.D.S. as often as he claimed,             
          petitioner still did not have custody of I.T.D.S. for over half             
          of 2003.5  See, e.g., Allen v. Commissioner, T.C. Memo. 1992-623            
          (concluding that the taxpayer who had custody on occasional                 
          weekends and during the summer did not have custody for over half           
          the year).  Petitioner did not attach to his return a Form 8332             

               4Petitioner attached an appendix to his brief detailing the            
          days he had custody of I.T.D.S. and claiming they totaled 186.              
          Petitioner did not present this evidence at trial.  Ex parte                
          statements in briefs are not evidence and will not be addressed.            
          Rule 143(b); Lombard v. Commissioner, T.C. Memo. 1994-154 n.3,              
          affd. without published opinion 57 F.3d 1066 (4th Cir. 1995).               
          Accordingly, we disregard this document in making our decision.             
               5According to respondent’s calculations, petitioner had                
          custody of I.T.D.S. for less than 156 days, well short of half of           
          the calendar year.                                                          





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