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Petitioner does not claim that he satisfies the requirements
of section 152(e)(2). However, he cites several cases where the
Court has looked to where the child resided in determining which
parent had physical custody for purposes of section 152(e)(1).
Otmishi v. Commissioner, T.C. Memo. 1980-472; Dumke v.
Commissioner, T.C. Memo. 1975-91, affd. without published opinion
524 F.2d 1230 (5th Cir. 1975). In those cases, even if the
custody decree granted legal custody to one parent, under
circumstances not present in this case, the Court held that the
parent was not entitled to a dependency exemption deduction.
As an initial matter, petitioner has not presented evidence
such as a detailed log or diary showing that he had actual care
and custody of the children for a greater portion of 2002 than
Mrs. Jenkins, and Mrs. Jenkins’s calendar of events seems
contrary to petitioner’s position. We cannot determine from this
record that the children resided with petitioner for a greater
portion of 2002.
More importantly, even if petitioner submitted evidence of a
detailed log or diary of the time spent with his children in
2002, we do not agree that petitioner was the custodial parent
for 2002 for purposes of section 152(e). The terms of the State
custody order clearly state that the primary residence of the
children is with Mrs. Jenkins, provided she resides in Henry
County, and during all of 2002 she did. Counting days of the
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