Tax question - what documentation should we submit?

Question

My husband has court papers that state he may claim his son (who lives with the mom) every year as long as he is current with child support. He is current to the penny. This is the third year in a row that the mom has called and said she claimed him already. I think my husband should still claim him as he legally has permission from the courts. Should I send documentation (court papers and status of child support payments) with the return?

Answer 1

IRS rules trump the court decree. The court decree must meet very specific IRS tests for the non-custodial parent to claim the exemption for the child. See IRS Pub 501, page 11 for a complete explanation.

If the decree meets the IRS requirements, you must either attach Form 8332 or copies of the pages of the decree listed in Pub 501 to the tax return. This must be done for every year that the non-custodial parent claims the exemption.

If the court decree doesn't meet the IRS tests then the custodial parent gets the exemption unless they voluntarily relinquish it to the non-custodial parent using Form 8332 or a signed statement with the same information on it.

Unfortunately from the information you provided, the decree does NOT meet the IRS test for the non-custodial parent to claim the exemption. The IRS very specifically requires that the decree make NO conditional requirements to be eligible to claim the exemption and they specifically mention keeping child support current. Since the decree appears to tie the exemption to current child support, the exemption belongs to the custodial parent, the mother in this case.

There MIGHT be a civil case for the mother to answer -- contempt of court for disregarding the terms of the decree -- but as far as the IRS is concerned she gets the exemption and if you contest it with the IRS she will win.

The non-custodial parent now has to decide if it's worthwhile to go back to court and either get the decree modified or file a civil action against the mother. This could exacerbate an already contentious situation; only the parties involved can decide if it's worth going down that road. My personal advice -- I'm not a lawyer -- would be to take the high road and let it slide. It may be worth it in the interest of peace and tranquility.

Answer 2

Since the court papers connect the dependency exemption to the payment of child support, the papers are not acceptable documentation for claiming the dependency exemption. The condition of payment of child support excludes them.

The only way the father can claim the child is if the mother signs Form 8332 waiving her custodial right to claim the exemption.