                       T.C. Memo. 2003-182



                     UNITED STATES TAX COURT



       RALEIGH L. AND ANGELA M. J. WOMACK, Petitioners v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 12496-00.               Filed June 24, 2003.



     Raleigh L. Womack and Angela M. J. Womack, pro sese.

     Dustin Starbuck, for respondent.



                       MEMORANDUM OPINION


     CARLUZZO, Special Trial Judge:     Respondent determined a

deficiency of $805 in petitioners’ 1998 Federal income tax.

The issue for decision is whether petitioners are entitled to a

dependency exemption deduction for Nikki Womack.    The resolution

of the issue depends upon whether Raleigh L. Womack (petitioner)
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is treated as Nikki Womack’s “custodial parent”, within the

meaning of section 152(e),1 for the year in issue.

Background

     Some of the facts have been stipulated and are so found.       At

the time the petition was filed, petitioners resided in South

Boston, Virginia.

     Petitioner married Linda Caddle on August 21, 1982.     They

have a daughter, Nikki Womack, born February 2, 1984

(petitioner’s daughter).    Petitioner and Ms. Caddle separated in

1994 and were divorced in 1995.    The divorce decree provides that

custody of petitioner’s daughter would be established by

subsequent order, but no custody order was ever issued.

     From the time petitioner and Ms. Caddle divorced until at

least June 1998, petitioner’s daughter lived with him during the

week and lived with Ms. Caddle on weekends.    This arrangement

resulted, at least to some extent, from the respective work

schedules of petitioner and Ms. Caddle.    At the time, petitioner

worked during the day, and Ms. Caddle worked afternoons and

evenings.    Around February 2000, Ms. Caddle changed work

schedules and began working during the day.

     In June 1998, petitioner and his daughter, who was in the

eighth grade at the time, had a disagreement over the extent of



     1
       Unless otherwise indicated, section references are to the
Internal Revenue Code of 1986, as amended, in effect for 1998.
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her liberties.    As a result, petitioner’s daughter moved from

petitioner’s house, but she returned to live there shortly

thereafter.

     On his timely filed 1998 Federal income tax return,

petitioner claimed a dependency exemption deduction for his

daughter.    Respondent disallowed that deduction because,

according to the notice of deficiency, petitioner “did not

establish” that he is “entitled to the exemption”.

Discussion

     In general, a taxpayer is entitled to a dependency exemption

deduction for each of the taxpayer’s dependents.    Sec. 151(c).

The term “dependent” includes a child of the taxpayer, over half

of whose support for the year is received, or treated as

received, from the taxpayer.    Sec. 152(a).   Because petitioner’s

daughter is the child of divorced parents, her support is

determined pursuant to section 152(e).    That section provides,

subject to certain conditions not in dispute and exceptions not

applicable here, that the child is treated as having received

over half of his or her support from the parent who has custody

of the child for a greater portion of the year.    That parent is

referred to as the custodial parent.    Because the child is

treated as having received over half of his or her support from

the custodial parent, the custodial parent is generally entitled

to a dependency exemption deduction for the child.
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     For purposes of section 152(e), custody is determined by the

terms of the most recent custody decree, or, if none, by the

terms of a written separation agreement, in effect at the

relevant time.   Sec. 1.152-4(b), Income Tax Regs.    In this case

there is neither a custody decree nor a written separation

agreement that establishes custody of petitioner’s daughter for

purposes of section 152(e).   The parties agree that for purposes

of that section, the parent who had physical custody of

petitioner’s daughter for a greater portion of 1998 is treated as

her custodial parent for that year.    See id.   However, the

parties disagree over the year that petitioner’s daughter moved

from petitioner’s house to her mother’s house.    According to

petitioners, that event occurred in 2000; according to

respondent, that event occurred in June 1998.

     Both petitioners testified credibly that, except for

weekends and the incident that occurred in June of that year,

petitioner’s daughter lived with petitioner during the entire

1998 year.   Both described the living arrangements of

petitioner’s daughter that followed petitioner’s divorce from Ms.

Caddle, and each referred to specific school events involving

petitioner’s daughter (e.g., the school year that she was on the

track team, the school year that she participated in JROTC, etc.)

that allowed them to determine a time frame with confidence.

Furthermore, petitioner explained that his daughter moved in with
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Ms. Caddle during the year that Ms. Caddle’s work schedule

changed.

     Ms. Caddle testified and confirmed that her work schedule

changed in 2000.   According to Ms. Caddle, however, her daughter

moved in with her before then.    Ms. Caddle determined the time

frame based upon the completion of her new house, which she moved

into prior to 2000.

     Petitioner’s daughter also testified.       She admitted that she

was unsure of the year that she moved in with her mother, but

recalled that it was during the year that her mother switched

from working afternoons and evenings to working days.

     After careful consideration of all of the evidence in this

case, including the handwritten note authored by petitioner’s

daughter, we are satisfied that petitioners’ version of the

events is correct.    That being the case, we find that for

purposes of section 152(e), petitioner is treated as the

custodial parent of his daughter for 1998.       It follows that he is

entitled to a dependency exemption deduction for her for that

year, and respondent’s determination to the contrary must be

rejected.

     To reflect the foregoing,

                                         Decision will be entered

                                 for petitioners.
