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“Custody,” for purposes of this section, will be
determined by the terms of the most recent decree of
divorce or separate maintenance, or subsequent custody
decree, or, if none, a written separation agreement.
In the event of so-called “split” custody, or if
neither a decree or agreement establishes who has
custody, * * * “custody” will be deemed to be with the
parent who, as between both parents, has the physical
custody of the child for the greater portion of the
calendar year. [Sec. 1.152-4(b), Income Tax Regs.]
A custodial parent may release claim to the exemption
pursuant to the provisions of section 152(e)(2), which provides:
SEC. 152(e). Support Test in Case of Child of
Divorced Parents, Etc.--
* * * * * * *
(2) Exception where custodial parent releases
claim to exemption for the year.--A child * * * shall
be treated as having received over half of his support
during a calendar year from the noncustodial parent if—
(A) the custodial parent signs a
written declaration (in such manner and form
as the Secretary may by regulations
prescribe) that such custodial parent will
not claim such child as a dependent for any
taxable year beginning in such calendar year,
and
(B) the noncustodial parent attaches
such written declaration to the noncustodial
parent’s return for the taxable year
beginning during such calendar year.
For purposes of this subsection, the term
“noncustodial parent” means the parent who is
not the custodial parent.
The temporary regulations promulgated with respect to
section 152(e)(2) provide that a noncustodial parent may claim
the exemption for a dependent child “only if the noncustodial
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Last modified: May 25, 2011