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Do I have anything to worry about? If I do get a letter would the court order be suffecient proof?

I was awarded custody of my son August 6. The order states, "to grant him any and all additional relief to which he may appear entitled".  My sons mother doesn't seem to think that applies to taxes. The order clearly states ALL relief. And she continues to ignore me. With the just shy of six months of the order and every weekend and holiday I am more then over the six months requirements. So I don't know if I will have any problems if she decides to file as well. I have already e-filed as of Jan 13th.
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Do I have anything to worry about? If I do get a letter would the court order be suffecient proof?

Who did the child physically live with more nights in 2016?   Local court order have no meaning in tax law and the custody granted by court is not the same as "tax custody" as defined in Federal Tax law.

Custodial Parent

There is no such thing in the Federal tax law as 50/50, split, or joint custody.  The IRS only recognizes physical custody (which parent the child lived with the greater part, but over half, of the tax year.  That parent is the custodial parent; the other parent is the noncustodial parent.)

Who can claim the exemption and credits depends on who is the custodial parent. (By the IRS definition of custodial parent for tax purposes - this is not the same as the custody that a court might grant.).

The test that the IRS uses to determine the custodial parent is where the child lived for more than 1/2 (or greater part) of the year. The IRS will go so far as to require counting the nights spend in each household - that person is the custodial parent for tax purposes (if exactly equal and more than 183 days - The custodial parent is the parent with the highest AGI, if less than 183 days then neither parent has custody). And yes they are that picky.
See Custodial parent and noncustodial parent  under the residency test in Pub 17
https://www.irs.gov/publications/p17/ch03.html#en_US_2016_publink1000170897
 
Only the Custodial parent can claim: (Child would be listed as non-dependent EIC & CC only)
-Head of Household
-Earned Income Credit
-Child Care Credit

The non custodial parent can only claim: (Child would be listed as dependent)
-The Exemption
- The Child Tax Credit

See Special rule to divorced or separated parents (or parents who live apart).
https://www.irs.gov/publications/p17/ch03.html#en_US_2016_publink1000170897

But only if specifically specified in a pre-2009 divorce decree, separation agreement or the custodial spouse releases the exemption with a signed 8332 form - after 2009 the IRS only accepts a signed 8332 form that must be attached to the non-custodial parents tax return.

Note. If you are filing your return electronically, you must file Form 8332 with Form 8453, (U.S. Individual Income Tax Transmittal) for an IRS e-file Return. See Form 8453 and its instructions for more details.  This must be done within 3 days of your e-filed return being accepted by the IRS.

This does NOT mean that the custodial parent can ignore any Decree or court order allowing the non-custodial parent to claim the exemption - they can be required to issue the 8332 form. They could be required by the court to do so or be in contempt.

See “Children of divorced or separated parents or parents who live apart” in IRS Pub 17 for full information.
https://www.irs.gov/publications/p17/ch03.html#en_US_2016_publink1000170897
-----------------
Post-1984 and pre-2009 divorce decree or separation agreement.   If the divorce decree or separation agreement went into effect after 1984 and before 2009, the noncustodial parent may be able to attach certain pages from the decree or agreement instead of Form 8332. The decree or agreement must state all three of the following.

   1. The noncustodial parent can claim the child as a dependent without regard to any condition, such as payment of support.
   2. The custodial parent will not claim the child as a dependent for the year.
   3.The years for which the noncustodial parent, rather than the custodial parent, can claim the child as a dependent.

  The noncustodial parent must attach all of the following pages of the decree or agreement to his or her tax return.

    * The cover page (write the other parent's social security number on this page).
    * The pages that include all of the information identified in items (1) through (3) above.
    * The signature page with the other parent's signature and the date of the agreement.

Post-2008 divorce decree or separation agreement.   The noncustodial parent cannot attach pages from the decree or agreement instead of Form 8332 if the decree or agreement went into effect after 2008. The custodial parent must sign either Form 8332 or a similar statement whose only purpose is to release the custodial parent's claim to an exemption for a child, and the noncustodial parent must attach a copy to his or her return. The form or statement must release the custodial parent's claim to the child without any conditions. For example, the release must not depend on the noncustodial parent paying support.

Form 8332 rules:
Attach this form or similar statement to your tax return for each year you claim the exemption for your child. You can claim the exemption only if the other dependency tests in your tax return instruction booklet are met.

Note. If you are filing your return electronically, you must file Form 8332 with Form 8453, (U.S. Individual Income Tax Transmittal for an IRS e-file Return). See Form 8453 and its instructions for more details.

This must be done within 3 days of your e-filed return being accepted by the IRS.
http://www.irs.gov/pub/irs-pdf/f8453.pdf
**Disclaimer: This post is for discussion purposes only and is NOT tax advice. The author takes no responsibility for the accuracy of any information in this post.**

View solution in original post

3 Replies

Do I have anything to worry about? If I do get a letter would the court order be suffecient proof?

Who did the child physically live with more nights in 2016?   Local court order have no meaning in tax law and the custody granted by court is not the same as "tax custody" as defined in Federal Tax law.

Custodial Parent

There is no such thing in the Federal tax law as 50/50, split, or joint custody.  The IRS only recognizes physical custody (which parent the child lived with the greater part, but over half, of the tax year.  That parent is the custodial parent; the other parent is the noncustodial parent.)

Who can claim the exemption and credits depends on who is the custodial parent. (By the IRS definition of custodial parent for tax purposes - this is not the same as the custody that a court might grant.).

The test that the IRS uses to determine the custodial parent is where the child lived for more than 1/2 (or greater part) of the year. The IRS will go so far as to require counting the nights spend in each household - that person is the custodial parent for tax purposes (if exactly equal and more than 183 days - The custodial parent is the parent with the highest AGI, if less than 183 days then neither parent has custody). And yes they are that picky.
See Custodial parent and noncustodial parent  under the residency test in Pub 17
https://www.irs.gov/publications/p17/ch03.html#en_US_2016_publink1000170897
 
Only the Custodial parent can claim: (Child would be listed as non-dependent EIC & CC only)
-Head of Household
-Earned Income Credit
-Child Care Credit

The non custodial parent can only claim: (Child would be listed as dependent)
-The Exemption
- The Child Tax Credit

See Special rule to divorced or separated parents (or parents who live apart).
https://www.irs.gov/publications/p17/ch03.html#en_US_2016_publink1000170897

But only if specifically specified in a pre-2009 divorce decree, separation agreement or the custodial spouse releases the exemption with a signed 8332 form - after 2009 the IRS only accepts a signed 8332 form that must be attached to the non-custodial parents tax return.

Note. If you are filing your return electronically, you must file Form 8332 with Form 8453, (U.S. Individual Income Tax Transmittal) for an IRS e-file Return. See Form 8453 and its instructions for more details.  This must be done within 3 days of your e-filed return being accepted by the IRS.

This does NOT mean that the custodial parent can ignore any Decree or court order allowing the non-custodial parent to claim the exemption - they can be required to issue the 8332 form. They could be required by the court to do so or be in contempt.

See “Children of divorced or separated parents or parents who live apart” in IRS Pub 17 for full information.
https://www.irs.gov/publications/p17/ch03.html#en_US_2016_publink1000170897
-----------------
Post-1984 and pre-2009 divorce decree or separation agreement.   If the divorce decree or separation agreement went into effect after 1984 and before 2009, the noncustodial parent may be able to attach certain pages from the decree or agreement instead of Form 8332. The decree or agreement must state all three of the following.

   1. The noncustodial parent can claim the child as a dependent without regard to any condition, such as payment of support.
   2. The custodial parent will not claim the child as a dependent for the year.
   3.The years for which the noncustodial parent, rather than the custodial parent, can claim the child as a dependent.

  The noncustodial parent must attach all of the following pages of the decree or agreement to his or her tax return.

    * The cover page (write the other parent's social security number on this page).
    * The pages that include all of the information identified in items (1) through (3) above.
    * The signature page with the other parent's signature and the date of the agreement.

Post-2008 divorce decree or separation agreement.   The noncustodial parent cannot attach pages from the decree or agreement instead of Form 8332 if the decree or agreement went into effect after 2008. The custodial parent must sign either Form 8332 or a similar statement whose only purpose is to release the custodial parent's claim to an exemption for a child, and the noncustodial parent must attach a copy to his or her return. The form or statement must release the custodial parent's claim to the child without any conditions. For example, the release must not depend on the noncustodial parent paying support.

Form 8332 rules:
Attach this form or similar statement to your tax return for each year you claim the exemption for your child. You can claim the exemption only if the other dependency tests in your tax return instruction booklet are met.

Note. If you are filing your return electronically, you must file Form 8332 with Form 8453, (U.S. Individual Income Tax Transmittal for an IRS e-file Return). See Form 8453 and its instructions for more details.

This must be done within 3 days of your e-filed return being accepted by the IRS.
http://www.irs.gov/pub/irs-pdf/f8453.pdf
**Disclaimer: This post is for discussion purposes only and is NOT tax advice. The author takes no responsibility for the accuracy of any information in this post.**

Do I have anything to worry about? If I do get a letter would the court order be suffecient proof?

My son has been with me for 211 nights in 2016. So that is more then over the 183. That would make me the custodial. So For her to file she would have had to receive the 8332 from me. Which I have not and won't provide.

I think I got it. Thanks for responding at 11 pm. This has been stressing me out. And a little clarity is appreciated.

Do I have anything to worry about? If I do get a letter would the court order be suffecient proof?

If both parents claim the same child the first one to e-file will be accepted, the 2nd one will reject that the dependent has already been claimed.  That parent, if entitled to claim, will have to mail file.  

The IRS, within a year or so, will send letters to both parents asking if their tax return was accurate and suggesting that they amend if not.   If neither parent amends, then then IRS will request the parents proof that the child actually lived with them for the required time.   The IRS will evaluate the proof provided and one parent will get to keep the refund, the other will have to pay it back with interest and possible penalties.

School records with your address, medical records with your name/address, other bills, etc. that can show that the child lived with you will help, also affidavits from friends and neighbors that the child lived with you.  You should hold on to all such records as your proof since this can take a year or two if both of you claim the same child.
**Disclaimer: This post is for discussion purposes only and is NOT tax advice. The author takes no responsibility for the accuracy of any information in this post.**
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