                  T.C. Memo. 2003-272



                UNITED STATES TAX COURT



         KELLY LONDON MCCULLAR, Petitioner v.
     COMMISSIONER OF INTERNAL REVENUE, Respondent



Docket No. 1477-02.                Filed September 17, 2003.



     R determined that P was not entitled to (1) a
dependency exemption for his daughter, (2) head of
household status, and (3) a child tax credit.

     1. Held: P was the custodial parent of his
daughter and therefore may claim a dependency exemption
for her.

     2. Held, further, P is entitled to head of
household status and the child tax credit.



Kelly London McCullar, pro se.

Julie P. Gasper, for respondent.
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             MEMORANDUM FINDINGS OF FACT AND OPINION

     HALPERN, Judge:   By notice of deficiency dated September 21,

2001 (the notice), respondent determined a deficiency in

petitioner’s Federal income tax for his 1998 taxable year in the

amount of $2,834.00.   The issues for decision are whether, for

1998, (1) petitioner’s daughter is a qualifying individual such

that he is entitled to claim a dependency exemption deduction for

her, (2) petitioner is entitled to claim “head of household

status” in filing his return, and (3) petitioner is entitled to

claim the child tax credit.

     Except as otherwise provided, all section references are to

the Internal Revenue Code in effect for 1998.

                         FINDINGS OF FACT

     Some facts are stipulated and are so found.   The stipulation

of facts, with accompanying exhibits, is incorporated herein by

this reference.   At the time the petition was filed, petitioner

resided in Rockwall, Texas.

     On April 15, 1999, petitioner filed his Form 1040, U.S.

Individual Income Tax Return for 1998, claiming head of household

status and an additional personal exemption and a child tax

credit with respect to his daughter, Emily McCullar (Emily).

Emily is the child of petitioner and his ex-wife, Mary Virginia

McCullar, who, by Texas final decree of divorce (the divorce

decree), were divorced on November 27, 1995.    At the time of the
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divorce, Emily was 6 years old.   According to the divorce decree,

petitioner and Ms. McCullar are joint managing conservators of

Emily, with Ms. McCullar having primary custody and control at

all times not specified in the decree.   Both petitioner and Ms.

McCullar claimed a dependency exemption deduction for Emily for

1998.   Throughout 1998, petitioner kept a diary of time (the log)

spent with Emily.   The log is a detailed account of the time

petitioner spent with his daughter and their activities together,

and, according to petitioner’s calculations, she was in his

physical custody for more than 50 percent of the year.    In the

notice, respondent determined that petitioner was not entitled to

claim his daughter as his dependent for 1998, nor was he entitled

to head of household status or the child tax credit.

                              OPINION

I.   Introduction

      There are three issues for decision:   the dependency

exemption, head of household status, and the child tax credit.

Because we decide the first issue for petitioner, the parties

agree (and so do we) that the other two issues must be decided

for petitioner as well.
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II.   Dependency Exemption

      A.   Code and Regulations

      Section 151 allows deductions for personal exemptions.

Besides providing exemptions for the taxpayer and, in certain

circumstances, the taxpayer’s spouse, section 151 provides

exemptions for dependents of the taxpayer.      Section 152(a)

defines the term “dependent” to include a son or daughter of the

taxpayer “over half of whose support for the calendar year * * *

was received from the taxpayer (or is treated under subsection

(c) or (e) as received from the taxpayer)”.

      In pertinent part, section 152(e)(1) provides that, if a

child of divorced parents receives over half of his support

during the year from his parents and is in the custody of one or

both parents for more than half of the year, then the child shall

be treated as receiving over half of his support during the year

from the parent having custody for a greater portion of the year.

That parent is referred to as the “custodial parent”.      Id.

      In pertinent part, section 1.152-4(b), Income Tax Regs.,

provides that custody is determined by the most recent decree of

divorce.    It further provides:    “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.”
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     B.     Arguments of the Parties

     Respondent argues that, under the general rule of section

1.152-4(b), Income Tax Regs., we must look to the divorce decree

to determine who (as between petitioner and Ms. McCullar) had

custody of Emily for the greater portion of 1998.       Respondent

calculates (without elaborate explanation) that, under the

divorce decree, Emily was to be with Ms. McCullar for 4,996 hours

in (or approximately 57 percent of) 1998, while she was to be

with petitioner for 3,764 hours in (or approximately 43 percent

of) 1998.     On that basis, respondent concludes that Ms. McCullar

was the custodial parent in 1998.

     Petitioner argues that, because the divorce decree creates a

“split custody” arrangement within the meaning of the second

sentence of section 1.152-4(b), Income Tax Regs., the Court must

determine who had physical custody of Emily for the greater

portion of 1998.     Based on the log introduced into evidence,

petitioner calculates that he had physical custody of Emily for

54 percent of 1998, making him the custodial parent for that

year.     Respondent counters that the split custody rule in the

regulations is not applicable, since split custody refers to

situations where the divorce decree, while providing for shared

custody, does not specify which parent is entitled to custody for

the greater portion of the year.       Respondent further contends

that, even if the split custody rule is applicable, the record
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shows that Ms. McCullar, not petitioner, had physical custody of

Emily for the greater portion of 1998.

     C.   Discussion

     The divorce decree gives custody of Emily to both petitioner

and Ms. McCullar, although Ms. McCullar is awarded “the primary

custody and control of * * * [Emily] at all times other than as

specified in the [divorce decree]”.   The situation thus fits the

description in section 152(e)(1) of the child (Emily) being in

the custody of both parents for more than half of the year.   To

determine the custodial parent, we must determine who had custody

of Emily “for a greater portion” of the year.   The statute offers

no assistance in answering that question.

     As indicated above, section 1.152-4(b), Income Tax Regs.,

does address “so-called ‘split’ custody”.   While we acknowledge

the ambiguity of the term “split custody”,1 respondent has failed


     1
        According to commentators, the term “split custody” is
sometimes used to describe a situation where divorced parents
with two or more children each take custody of one or more of
those children. See Wofford, Divorce and Separation, 515-2d
T.M., at A-64 n.634; Benson, “The Child Dependency Exemption and
Divorced Parents: What is ‘Custody’?,” 18 Cap. U. L. Rev. 57, 64
(1989). It is sometimes used interchangeably with “divided” or
“alternating” custody, in which sole custody (legal and physical)
alternates between the parents. See Kapner, “Joint Custody and
Shared Parental Responsibility: An Examination of Approaches in
Wisconsin and Florida,” 66 Marq. L. Rev. 673, 673 (1983); Cross,
Annotation, “‘Split,’ ‘divided,’ or ‘alternate’ custody of
children,” 92 A.L.R.2d 695 (1963); see also Black’s Law
Dictionary 390 (7th ed. 1999) (defining “divided custody”). It
is also used interchangeably with “joint” or “shared” custody, in
which both parents share in the decisions concerning the child’s
                                                   (continued...)
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to convince us that, in the context of section 1.152-4(b), Income

Tax Regs., such term means anything other than the joint or

shared custody of a single child by divorced or separated

parents, with the dependency exemption going to the parent who

has actual, physical custody (and not just the right to custody)

for the greater portion of the year.    See, e.g., Dail v.

Commissioner, T.C. Memo. 2003-211; Maher v. Commissioner, T.C.

Memo. 2003-85.   Of course, respondent is free, within the

confines of his rulemaking authority, to reword the 30-year-old

regulation.

     We turn now to the issue of which parent had physical

custody of Emily for the greater portion of 1998.   Petitioner’s

log gives detailed descriptions about the time he spent with and

without his daughter each day of 1998, written in different ink

and typed in different fonts.   Respondent argues that the log

contains errors.   Given the testimony of both petitioner and his

ex-wife, we have determined that petitioner is a credible witness

and that his log is valid and not fabricated.   After giving

consideration to the dates petitioner spent with his daughter

that respondent claims are in error, petitioner still spent over


     1
      (...continued)
upbringing at all times (i.e., regardless of which parent has
physical custody of the child at any given time). See Giggetts,
Annotation, “Application of Child-Support Guidelines to Cases of
Joint-, Split-, or Similar Shared-Custody Arrangements,” 57
A.L.R.5th 389 (1998); Benson, supra at 64; see also Black’s Law
Dictionary, supra at 390 (defining “joint custody”).
                                - 8 -

50 percent of the nights of the audit year with his daughter.2

Therefore, we conclude that he was the custodial parent for 1998

and is entitled to the dependency exemption.

III.       Other Items

       On the basis of our resolution of the dependency exemption

issue, petitioner is entitled to claim (1) head of household

status in filing his return and (2) the child tax credit.


                                        Decision will be entered for

                                petitioner.




       2
        For periods in which the child is regularly attending
school, we believe it is appropriate to quantify time spent with
a parent through the number of nights spent together. See Jeter
v. Commissioner, T.C. Memo. 2001-223, affd. 26 Fed. Appx. 321
(4th Cir. 2002).
