Divorced parents - who can claim credits

[Gary2]

As has been outlined above, the Tax Court in Boltington, Kaechele and Ferguson, ruled based upon the age of majority. When Treasury wrote the regulations I believe they royally screwed up. In TD-9408, released in July 2, 2008, they specifically introduced "emancipation" into the formula when it had not been used as a measuring stick before. I've spoken with the contact person of TD-9408 and I think they simply assumed that age of support and emancipation were the same. In most states they are. Not all.

If you reside in a state where both the age of majority and emancipation are 18 years old, then Form 8332 simply doesn't work. You can't release someone no longer in your custody. For those in the states where there are different age of majority and emancipation statutes, I believe you can rely on Reg. 1.152-4(d)(1) and use an 8332 if your child has not been emancipated.

Oh, what a tangled web.

Kaechele, TC Memo 1992-457 seems to be the oldest of these cases. I could only find it online at a Russion domain, http://www.taxpravo.ru/sudebnie_dela..._and_Kathryn_G, Assuming that text is accurate, the decision uses the language "considered emancipated under the law of the State of Ohio." Ferguson can be found at the same Russian site, and again uses the language "considered emancipated under State law, section 152(e)(1) is inapplicable."

Boltinghouse can be found at the Tax Court web site. Far be it for me, as a non-lawyer, to criticize the court, but this decision clearly uses language inconsistent with the wording of the previous decisions. A web search for the age of emancipation in VA turned up conflicting opinions, but I don't think it would affect the decision.

More interesting to me is the D'Amours case from the tax court site. Here the language changes mid-paragraph, "age of majority in Massachusetts at 18 ... considered emancipated under State law". However, in this case the child wasn't enrolled in college, so he wouldn't have met the condition I mentioned earlier, where a child wouldn't be considered emancipated at age 18 if he were still in collage.

Perhaps if I were in a state where emancipation is cut and dry, I might treat things differently. But it's not cut and dry in MA, and making legal conclusions that would be better done by a family law attorney is not part of my job.

[Gary2]

Most child support arrangements cease at a child's age 18. The divorce decree normally specifies whether this is the case or not, and if such has occurred, then the non-custodial parent would be hard-pressed to prove support. I had a case where the non-custodial parent could prove it, the custodial spouse did not work, and the 8332 was not required once the child attained age 18 (per the IRS) as it was the age of majority in this state.

This sounds like the non-custodial parent was claiming on the QR rules (unless it predates those rules). In theory, those could apply even when the child was below the age of majority.