Decree versus actual

[taxgirl]

I have a client who's decree states mother and father alternate children for dependency exemption. She has had all three children for the entire year as he is deployed in DC. I can not find anything concrete that shows actual time spent (over 50%) trumps decree. Thoughts?

[dtlee]

I have a client who's decree states mother and father alternate children for dependency exemption. She has had all three children for the entire year as he is deployed in DC. I can not find anything concrete that shows actual time spent (over 50%) trumps decree. Thoughts?

I would say that the IRS Regulations govern who is the custodial parent rather than a divorce decree, but that would not prevent the custodial parent from authorizing the noncustodial parent from claiming the child under the rules for divorced or separated parents.

Check out 26 CFR 1.152-4 - Special rule for a child of divorced or separated parents or parents who live apart.

[taxgirl]

Thank you!

[David1980]

Keep in mind there could be legal issues as well as tax issues.

Let's say custodial mom agrees in 2010 divorce to sign over the exemption for son to dad. Then mom decides she wants to claim kid anyway. Dependency rules aren't overruled by the decree. However, non-custodial dad could go after custodial mom for failure to comply with the court order.

[taxea]

IRS rule trumps court document. If custodial parent paid more support than non-custodial parent she gets the exemptions.

[David1980]

IRS rule trumps court document. If custodial parent paid more support than non-custodial parent she gets the exemptions.

They changed the dependency rules awhile back. ~2004 or so? Custodial parent doesn't need to provide any support at all under qualifying child rules. Child can't provide over half their own support.

[taxea]

I didn't say anything about the child providing their own support. If the father didn't supply more than 1/2 the support of the child then he has no claim to the exemption. And if he wants to take the child she has to sign an 8832 allowing it.

[David1980]

I didn't say anything about the child providing their own support. If the father didn't supply more than 1/2 the support of the child then he has no claim to the exemption. And if he wants to take the child she has to sign an 8832 allowing it.

Father can claim exemption (with 8332) under the divorced/separated parent rules even if he doesn't pay one single cent of support. Under the special rules for divorced or separated parents, the child must receive over half of his or her support for the year from the parents. But no requirement that non-custodial parent provides support.

And even if father pays 100% of support, the exemption still goes to the custodial parent mom unless she signs over the exemption (or qualifying pre-2009 divorce decree).

[taxgirl]

Based on 26 CFR 1.152-4, I determined that even though he did not have physical custody, he paid at least $600 in support and therefore was able to take the exemption. They have split custody and have been divorced for a long time. Read it... it's loads of fun.

[David1980]

Based on 26 CFR 1.152-4, I determined that even though he did not have physical custody, he paid at least $600 in support and therefore was able to take the exemption. They have split custody and have been divorced for a long time. Read it... it's loads of fun.

The $600 is for pre-1985 instruments. Was the divorce that long ago?

[taxgirl]

I don't see that date anywhere

[taxgirl]

I found more to dig into.

[taxea]

Father can claim exemption (with 8332) under the divorced/separated parent rules even if he doesn't pay one single cent of support. Under the special rules for divorced or separated parents, the child must receive over half of his or her support for the year from the parents. But no requirement that non-custodial parent provides support.

And even if father pays 100% of support, the exemption still goes to the custodial parent mom unless she signs over the exemption (or qualifying pre-2009 divorce decree).

That's what I said