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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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