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applies regardless of whether the parents were married.2 King v.
Commissioner, 121 T.C. 245 (2003).
Custody is determined by the most recent divorce or custody
decree. Sec. 1.152-4(b), Income Tax Regs. A noncustodial parent
may be entitled to a dependency exemption deduction pursuant to
section 151 if the noncustodial parent attaches to his tax return
a Form 8332, Release of Claim to Exemption for Child of Divorced
or Separated Parents, or similar written declaration, signed by
the custodial parent, stating that the custodial parent will not
claim the child as a dependent for the calendar year. Sec.
152(e)(2); Miller v. Commissioner, 114 T.C. 184 (2000). The
custody order granted primary physical custody to Ms. Warner.
Petitioners did not attach to their 2003 return a Form 8332 or
similar written declaration by Ms. Warner stating that she would
not claim the child as a dependent. Accordingly, we hold that
petitioners are not entitled to a dependency exemption deduction
for J.S. for taxable year 2003.
To qualify for the additional child tax credit, the taxpayer
must show that he was entitled to a dependency exemption
deduction for his child. See sec. 24(a), (c). As stated above,
petitioners are not entitled to a dependency exemption deduction
2It is unclear from the record whether Ms. Warner and
petitioner Terrance LaShawn Shields were previously married.
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Last modified: May 25, 2011