This thread has been growing for months now - literally! With no end in sight. So please bear with me as I try to "sum it up" in a single post - hopefully without writing a multi-volumn encylopedia. This is my attempt to make sense of this for those participants in this thrread who are seeking guidance, as well as the multitude of people who are following this thread and remaining silent.
The IRS is a federal institution that uses federal laws to institute federal taxation of U.S. Citizens and non-citizens who are authorized and allowed to work in this country. Those federal laws can only be over-ridden by a federal judge. Period. Since federal judges do not deal with divorce, separation or custody cases I can say with 100% certainty that such an over-ride will *never* happen.
Now when I use the word "rule" or "rules" in this post, I am referring to IRS rules which as established based on federal law.
The IRS has specific and explicit rules that clearly define the custodial parent and the non-custodial parent. IN a nutshell, and without quoting them all "vet-batim", here they are.
- The custodial parent is the parent with whom the child lived in their household for more than 182 nights of the tax year. Temporary absences, such as being away to attend school, hospital stays, overnight visits with friends, etc. count for these days provided the child returns to the same home they left, at the end of the temporary absence. The number of nights do *not* have to be consecutive either.
If the separation of the parents occurred during the tax year and the child lived with both parents prior to the separation, then the custodial parent is the parent with whom the child was with the most nights of the tax year.
- The non-custodial parent is the parent with whom the child did not live with for more than 182 nights of the tax year. If the separation occured during the tax year then the non-custodial parent is the parent with whom the child did not live with the most nights of the year.
Those are the rules as dictated by the IRS, based on federal law. Keeping in mind that federal judges do not deal with divorce, separation or custody cases, there is no other judge that can over-ride those two rules above which are based on federal law. Period. But that does not mean a lower court judge is completely powerless. Keep reading.
The non-custodial parent can claim the child as a dependent for the tax year, *only* if the custodial parent provides the non-custodial parent a signed IRS Form 8332 - Release/Revocation of Release of Claim to Exemption for Child by Custodial Parent.
What a state or lower court judge can do, is give the custodial parent a court order to sign the IRS Form 8332 and provide it to the non-custodial parent. Now the judge can't force the custodial parent to sign it. But that same judge can find the custodial parent in violation of a lawful court order and hold that custodial parent in contempt of court if the custodial parent still refuses to sign the form 8332.
If the custodial parent is adamant and just flat out will not sign the 8332, then with the contempt of court finding and in accordance with state laws the judge can do things like incarcerate the custodial parent, or fine the custodial parent for each day they refuse to sign it, or any number of other things as permitted by your state's laws. So the lower court judge is not totally powerless here.
But one thing to understand here; the IRS will not, under any circumstances and with no exceptions, get involved in any way, form or fashion with your legal pursuits. Without a signed form 8332, the non-custodial parent just flat out, no way, no how can claim the child as a dependent. Period.
Now when it comes to state taxes, things may be totally different. it's perfectly possible depending on the laws of your state, that a state judge can legally "order" the non-custodial parent to claim the child as a dependent on the state tax return. But the judge can not under any circumstances and with no exception make the same order pertain to the federal tax return.
