Prop. regs. on dependency exemption for noncustodial parent.

• Author: Nellen, Annette

Generally, under the uniform rules defining a "qualifying child" of a taxpayer, the child must have the same principal place of abode as the taxpayer for over half the year. Special rules for parents who are divorced or legally separated or who live apart at all times during the last six months of the year may allow a variation if the child receives over half of his or her support during the year from the parents and is in the custody of one or both parents for over half the year. Under this variation, the non-custodial parent may claim the exemption if there is either a signed written declaration (Sec. 152(e)(2)) or a "pre-1985 instrument" (Sec. 152(e)(3)).

The Service recently issued proposed regulations on this special rule (REG-149056-03). Per Sec. 152(e)(4)(A), a "custodial parent" is "the parent having custody for the greater portion of the calendar year." Prop. Regs. Sec. 1.152-4(c) provides that the determination is made by counting the number of nights the child spends with a parent. If a child is temporarily absent any night, the child is treated as residing with the parent with whom he or she would otherwise have resided. Unlike prior law, the divorce decree or similar agreement is not used to determine custody.

Under Prop. Regs. Sec. 1.152-4(d), a written declaration required by Sec. 152(e)(2) must:

* Constitute the custodial parent's unconditional release of the claim for the year or years for which the doduration is effective;

* Name the noncustodial parent;

*...