If a taxpayer maintains a household that includes "a dependent of the taxpayer who is under the age of 13 and with respect to whom the taxpayer is entitled to a deduction under section 151(c)", sec. 21(b)(1)(A), then section 21(a) allows the taxpayer a tax credit for certain employment-related expenses. Section 24(a) allows a taxpayer a $ 1,000 tax credit for each "qualifying child". That term includes a child of the taxpayer under the age of 17 for whom "the taxpayer is allowed a deduction under section 151". Sec. 24(c)(1). ^{32009 Tax Ct. Memo LEXIS 298">*302}

Section 1(b) applies an advantageous tax rate to the taxable income of unmarried individuals who qualify as "heads of households". Compare sec. 1(b) with sec. 1(c) (rate generally applicable to taxable income of unmarried individuals). Under section 2(b)(1), the term "head of a household" includes an individual unmarried at the end of the taxable year who, among other things, "maintains as his home a household which constitutes for more than one-half of such taxable year the principal place of abode, as a member of such household, of * * * a son * * * of the taxpayer".

To resolve most of the questions these cases present, we must decide, within the meaning of section 152, of which petitioner EJK was a dependent for 2004. That turns on which petitioner is treated as providing more 2009 Tax Ct. Memo LEXIS 298">*303 than half of EJK's support for 2004, and that turns on which petitioner had custody of EJK for a greater portion of 2004. In other words, we must decide for 2004 which petitioner was his custodial parent within the meaning of section 152(e)(1). Mr. Knochelmann's claim to head of household filing status turns on the similar question of whether his home was EJK's principal place of abode for more than half of 2004.

Mr. Knochelmann argues that he is entitled to claim EJK as his dependent for 2004 because he provided more than half of EJK's support for that year. He adds: "Any analysis of 26 USC 151, 152 that does not result in the parent who provided more than half of the support for a minor child as being entitled to claim him as a dependent would violate due process (absent an agreement to the contrary)."

Moreover, Mr. Knochelmann argues that he is entitled to claim EJK as his dependent for 2004 because he is the parent with whom EJK "resided for the longest period of time during" that year. He reaches his conclusion by counting only EJK's waking hours because, according to him, that is when the cost to support EJK was incurred. 2009 Tax Ct. Memo LEXIS 298">*304 ⁴

Ms. Bjelland argues that she is entitled to claim EJK as her dependent for 2004 because EJK "lives with her for the greater part of the year."

Respondent argues simply:

Petitioner Bjelland had custody of * * * [EJK] for more hours *

* * during 2004 than did petitioner Knochelmann. Petitioner Bjelland therefore qualifies as the custodial parent for 2004, as she had custody of * * * [EJK] for a slightly longer period of time than did petitioner Knochelmann.

Section 152, as it was in effect 2009 Tax Ct. Memo LEXIS 298">*305 in 2004, ⁵ controls whether EJK was for that year Mr. Knochelmann's dependent or Ms. Bjelland's dependent. We need not determine whether Mr. Knochelmann in fact provided most of EJK's support for 2004 because the actual support test in section 152(a) gives way to the deemed support test in section 152(e) in the case of certain parents who live apart at all times during the last 6 months of the year (including parents who have never married each other, see King v. Commissioner, 121 T.C. 245">121 T.C. 245, 121 T.C. 245">251 (2003)). The record clearly shows that petitioners did not live together during the last 6 months of 2004 and, for 2004, together met the joint support and custody tests of section 152(e). For that reason, under section 152(e)(1), the custodial parent is the parent "having custody for a greater portion of the calendar year" notwithstanding that the other parent may have contributed more to the child's support than did the custodial parent. ^{62009 Tax Ct. Memo LEXIS 298">*306}

For purposes of section 152(e)(1), for parents who have joint custody of a child, the custodial parent is the parent with "physical custody" for the greater portion of the calendar year. E.g., Dail v. Commissioner, T.C. Memo 2003-211; see sec. 1.152-4(b), Income Tax Regs. Neither the statute nor the regulations prescribe how to quantify the time each parent has physical custody; rather, the facts of each case determine the appropriate method. For example, we have considered 2009 Tax Ct. Memo LEXIS 298">*307 both the number of nights and the number of hours a child spends with each parent. See, e.g., McCullar v. Commissioner, T.C. Memo 2003-272 n.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."); Dail v. Commissioner, supra (mother was custodial parent because she had physical custody each week from 6 p.m. Thursday until 8 a.m. Monday and for 2 to 3 weeks during the summer); Valarian v. Commissioner, T.C. Memo. 1996-511 (father was not custodial parent because children resided with mother and spent approximately 30 hours a week with father).

Ms. Bjelland had physical custody of EJK for the greater portion of 2004 measured either by the number of hours or the number of nights he spent with her. Mr. Knochelmann's proposed "waking hours" method is unworkable and its underlying rationale is unpersuasive. There is no objective way to allocate the costs associated with a dependent to any particular hour. Moreover, we fail to see how costs such as rent and utilities, just to name a few, cease accruing on behalf of a dependent simply because he is asleep. For 2004, we 2009 Tax Ct. Memo LEXIS 298">*308 find that Ms. Bjelland was the custodial parent of EJK.

On that ground, we further find that, for 2004, EJK was Ms. Bjelland's dependent. For that reason, she is entitled to claim the dependency exemption deduction, the child care tax credit, and the child tax credit. Mr. Knochelmann is not entitled to any dependency exemption deduction, child care tax credit, or child tax credit. Moreover, given the similarity between the temporal requirements for head of household filing status and for custodial parent status, we find that he does not qualify as a head of household under section 2(b)(1).

Decision will be entered for petitioner in docket No. 20407-07 and for respondent in docket No. 21208-07.