Custodial Parent and Form 8332

[peggysioux]

Taxpayer and ex-spouse have joint custody of children and divorce decree states ex-spouse claims children. Taxpayer has children more than 50% of the time and provides a home for the children. In a current tax year, I would advise the taxpayer to file as HOH and submit a form 8332 to ex-husband. However, taxpayer is just now filing for 2018 and wants to file as described above; however, 8332 instructions state "the custodial parent must sign Form 8332 stating that she will not claim the child as a dependent for the tax year and the non-custodial parent must attach to his tax return." Ex-husband has already filed for 2018. Can a Form 8332 be prepared for 2018 and submitted to ex-spouse if filing late?

Peggy Sioux

[dtlee]

If the world were a perfect place, the ex-spouse would not have had Form 8332 in 2018 to include with his return and would have filed without claiming the children. Thus, by providing Form 8332 a year late, he would now need to amend the 2018 tax return to claim the children. This is hardly a perfect world. He probably filed and claimed them without the form.

First of all, Form 8332 should be provided to the claiming parent by the custodial parent to allow the claiming parent to claim the child in a timely manner regardless of whether or not the custodial parent ever even files a tax return. It is not an excuse to say, "I am filing late so I did not know I would not claim this child until I actually filed my return."

Secondly, providing this form late is preferable to never providing it at all. However, it is possible, in the scenario you describe, the form may have previously been prepared and supplied to the ex-husband" designating "all future years" as the period it covers. If that is the situation, the ex-husband already has the form he needs and no new form needs to be supplied unless this permission is being revoked for a future year.

[peggysioux]

If the world were a perfect place, the ex-spouse would not have had Form 8332 in 2018 to include with his return and would have filed without claiming the children. Thus, by providing Form 8332 a year late, he would now need to amend the 2018 tax return to claim the children. This is hardly a perfect world. He probably filed and claimed them without the form.

First of all, Form 8332 should be provided to the claiming parent by the non-custodial parent to allow the claiming parent to claim the child in a timely manner regardless of whether or not the custodial parent ever even files a tax return. It is not an excuse to say, "I am filing late so I did not know I would not claim this child until I actually filed my return."

Secondly, providing this form late is preferable to never providing it at all. However, it is possible, in the scenario you describe, the form may have previously been prepared and supplied to the ex-husband" designating "all future years" as the period it covers. If that is the situation, the ex-husband already has the form he needs and no new form needs to be supplied unless this permission is being revoked for a future year.

In your second paragraph, did you mean to say "Form 8332 should be provided to the claiming parent by the custodial parent?

Peggy Sioux

[dtlee]

In your second paragraph, did you mean to say "Form 8332 should be provided to the claiming parent by the custodial parent?

Peggy Sioux

Yes. I will fix.

[TaxGuyBill]

Ex-husband has already filed for 2018.

1) If they got divorced in 2018 and lived together part of the year, did the children live with the dad for at least 183 days? If so, Form 8332 is not needed for that year.

2) If the children did NOT live with that father at least 183 days, did the father actually claim the child? If not, yes, your client can give the father Form 8332 and the father can claim the children.

3) If the father DID claim the children, he incorrectly claimed the children, and it is likely he claimed them as 'full' dependents. If that is the case, you won't be able to e-file the mother's tax return because the dependent has already been claimed. She would need to file by mail. Father might be able to amend to give the IRS Form 8332, but if none of the numbers on the tax return change, it is likely the IRS won't know what to do with that amendment. Otherwise, they can both wait for the IRS to send them a notice to 'prove' who has the proper claim to claim the dependents.

[Dude]

Taxpayer and ex-spouse have joint custody of children and divorce decree states ex-spouse claims children. Taxpayer has children more than 50% of the time and provides a home for the children. In a current tax year, I would advise the taxpayer to file as HOH and submit a form 8332 to ex-husband. However, taxpayer is just now filing for 2018 and wants to file as described above; however, 8332 instructions state "the custodial parent must sign Form 8332 stating that she will not claim the child as a dependent for the tax year and the non-custodial parent must attach to his tax return." Ex-husband has already filed for 2018. Can a Form 8332 be prepared for 2018 and submitted to ex-spouse if filing late?

Peggy Sioux

Why is the taxpayer concerned about an 8332 they never signed? Unless there is a divorce decree that specifies otherwise, the custodial parent holds the cards. I advise clients who are considering a divorce and will end up as non custodial to get the 8332 signed while they are still on good terms. Once subsequent spouses, boyfriend, girlfriends enter the picture THEY often determine what happens and that usually means the non custodial parent never gets to claim the kids. In this case, again unless there is a divorce decree that specifies otherwise the taxpayer can file 2018 by paper and claim the children. There will be a fight but they will win.