Can the IRS overrule a court order allowing a non-custodial parent who pays child support to claim a child for five consecutive years?

[Opus 17]

@Sballerstein 

If the parent is behind in child support or is not fulfilling custodial responsibilities, that does not give the other parent a pass to claim the child in violation of the family court order. Only the family court can relieve or modify the order.  The IRS relies on one measure only, where the child physically lived more than half the nights of the year. The custodial parent can always claim their dependents if the children lived in their home more than half the nights of the year.  If this violates a court custody order, the other parent would have to go to court to enforce it. While the court might look less harshly on the custodial parent for ignoring the order if the non-custodial parent is not honoring their responsibilities, there is no guarantee of this. The custodial parent should not ignore the court order unless they have appropriate legal counsel.

The fact that the non-custodial parent is not following their responsibilities does not give the custodial parent any special rights or privileges with regard to the IRS.

Also, form 3949A is irrelevant in the situation and even potentially dangerous. Form 3949A is a referral of information about possible fraud to the IRS.  If the noncustodial parent issues a form 8332, and also lists their child on their own tax return correctly (as someone who lives with them but is not being claimed as a dependent because of a custody agreement), then if the non-custodial parent lists the child on their tax return incorrectly, it will automatically raise a red flag with the IRS and start an investigation. No referral is needed.  On the other hand, if the custodial parent does not issue form 8332 and only files the referral to get the other parent in trouble, the IRS may end up investigating both parents. As I mentioned above, if the non-custodial parent does not report form 8332 when claiming a dependent, they may be claiming excess tax benefits for the dependent. And if the custodial parent is supposed to be issuing form 8332 but does not, this could be seen by the IRS as facilitating fraud by the other parent. I would not risk the IRS attention in this way.   If the custodial parent follows the court order and the proper IRS procedures and issues a signed form 8332, they have covered all of their legal bases. If the non-custodial parent does anything wrong, the IRS will automatically find out and investigate.

[CuriousNYS]

Thank you for providing form number for reporting a noncustodial parent claiming child.  What are some case law examples?  Mrw1180 at yahoo

[CuriousNYS]

Examples would be great I think the battle will be hard to win but willing to try.  We all know IRS laws supersede divorce support courts yet why do judges still force this?

[Opus 17]

@CuriousNYS 

Case law for what?  If you want caselaw that says that the custodial parent can claim the child on their tax return even if there is a court order requiring something different, you don’t need caselaw for that, that is the plain language of the federal tax statute.

If you want caselaw for the proposition that the family court should revise a custody order if the non-custodial parent is not following their responsibilities, you would be looking for court cases decided in your state, because every state law is different.

[Krishe13]

I’m NJ medical expenses are considered an extension of child support. My ex is demanding to claim one of the kids even though he owes $2000 in medical expenses. I denied him and he’s saying I don’t have the “unilateral right” to make that decision and that he will be claiming him without the document and for EIC, when he doesn’t have custody. He’s also now threatening me with court, which was why I avoided formally adding the expenses to arrears in the first place, to avoid attorney and court fees. I’m so frustrated. Any thoughts on this would be greatly appreciated.

[Critter-3]

@Krishe13 

Don't give into the arrogant bully.  

Simply file your return correctly with the IRS and let them punish him with sanctions, penalties and interest.  This is not your fight.  If he does file before you simply mail in the return to retain your right to claim the child.  

[Hal_Al]

@Krishe13 

Q.  Any thoughts on this ?

A.  Let him claim the child as the court order says he can (this assumes the court order does not have the condition that he be current on child support). 

It's not clear what "will be claiming him without the document and for EIC" means.  The court order cannot allow him to claim EIC based on the child.  I only allows him the Child Tax Credit.  

You may have to provide him this info:

 There is a special rule in the case of divorced & separated (including never married) parents. When the non-custodial parent is claiming the child as a dependent/exemption/child tax credit; the custodial parent is still allowed to claim the same child for Earned Income Credit, Head of Household filing status, and day care credit. This "splitting of the child" is not available to parents who lived together at any time during the last 6 months of the year; then only one of you can claim the child for any tax reasons. The tax benefits may not be split in any other manner.

Note in particular that the non-custodial parent can never claim the Earned Income Credit, Head of Household filing status or the day care credit, based on that child, even when the custodial parent (or court order) has released the dependency to him.

[Critter-3]

If there is no  court order that  requires you to allow him to claim a child then he has no rights according to the IRS.  Let him know the IRS  rules that you will follow and the consequenses if he tries to claim the child incorrectly ...

 There is a special rule in the case of divorced & separated (including never married) parents. When the non-custodial parent is claiming the child as a dependent/exemption/child tax credit; the custodial parent** is still allowed to claim the same child for Earned Income Credit, Head of Household filing status, and day care credit. This "splitting of the child" is not available to parents who lived together at any time during the last 6 months of the year; then only one of you can claim the child for any tax reasons. The tax benefits may not be split in any other manner. 

Note in particular that the non-custodial parent can never claim the Earned Income Credit, Head of Household filing status or the day care credit, based on that child, even when the custodial parent has released the exemption to him.

 So, it's good idea to let the other parent know that you will be claiming those items, as many first time divorced parents are not aware of this rule and may try to claim those items, which will cause the IRS to send out letters.

Ref: https://www.irs.gov/publications/p17#en_US_2017_publink1000170897

Scroll down to "Children of divorced or separated parents (or parents who live apart)"

** The IRS goes by physical custody, not legal custody, for who is the custodial parent.  Furthermore, for tax purposes, there is no such thing as joint custody, regardless of what your legal agreement says. The requirement, to be custodial parent, is that the child live with you MORE than 50% of the time. One of you has to be the custodial parent and the other the non-custodial parent. The IRS goes by physical custody, not legal custody. 

[Hal_Al]

 The IRS doesn't care about his court order, unless it is dated before 2009. The IRS goes by it's own rules and will award the dependency to the custodial parent (you), if both parents try to claim the child. His only remedy against you is  to take you back to court for sanctions.  

 "The IRS will not award a dependent claim of the non-custodial parent without a signed form 8332 from the custodial parent.  Everything else is a matter between you, your ex, and the judge" (from previous reply above).

If someone else claimed your child inappropriately, and if they file first, your return will be rejected if e-filed. You would then need to file a return on paper, claiming the child as  appropriate. The IRS will process your return and send you your refund, in the normal time. Shortly (up to a year) thereafter, you'll receive a letter from the IRS, stating that your child was claimed on another return. It will tell you that if you made a mistake to file an amended return and if you didn't make a mistake to do nothing. The other party will get the same letter you did. If one of you doesn't file an amended return, unclaiming the child, the next letter, from the IRS, will require you to provide proof. Be sure to reply in a timely manner.

Winner gets the tax benefits; loser gets to pay the IRS back with penalties and interest.  The custodial parent almost always wins. 

[Krishe13]

The order states he is not to be in arrears in order to be eligible to claim. If medical is considered arrears, regardless whether it’s been formally added (which the order does not say I have to formally add it), that would make him not current. I’m going to speak with an attorney Monday to make sure but I’m absolutely exhausted. 

[Critter-3]

Even if he is not in arrears then he  gets to claim the dependency exemption & the CTC on his return  ONLY if you give him a signed 8332 no matter what the court order says.  On a federal income tax return the IRS rules apply. 

[SexyRed_67]

Can I revoke the non-custodial parent rights to claim our son.. even if I signed the divorce papers saying that he can. And I didn't receive a form from his lawyer when I received the divorce papers

[BrittanyS]

You can file a revocation of the release of claim to exemption for future years with form 8332, using part III.  Reclaiming the dependency isn't effective until the tax year after the calendar year in which you provide your child's noncustodial parent with Form 8332.  For example, if you provide the form in 2022, it will release the claim for the 2023 tax year.  For more information on revoking Form 8332, see the article below:

Form 8332

@SexyRed_67 

[Opus 17]

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@SexyRed_67 wrote:

Can I revoke the non-custodial parent rights to claim our son.. even if I signed the divorce papers saying that he can. And I didn't receive a form from his lawyer when I received the divorce papers

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Yes.  However, because we are in 2023 now, any revocation you send will only take effect in 2024, for the 2024 tax return you will prepare in the spring of 2025. 

For the 2022 (last year, preparing now) and 2023 tax years, you are stuck with whatever form you originally gave the other parent.

However, since that would appear to go against your court order, I recommend you get legal advice first.  I would never suggest going against a court order or the agreement you signed without being supported by competent legal advice. 

[Night_in_Gale]

I can only say that, at first glance, you appear to have the right to claim the child because:

 The IRS defines the term "Custodial Parent" Differently than Legal or Courts would define this term. According to the IRS what makes you the Custodial Parent is that the child resides with you for more than half the year...period. So, let's say that the father had the child stay with them from Jan. 1st of the tax year to July, and then, the child returned to your care, as per an agreement or court order or for whatever reason....then He would be considered the Custodial Parent for tax purposes, despite you having been awarded full custody by the legal system. There is one exception to this rule - see, "Kidnapping Rule" for the IRS. Now, since the child resided with you for the whole year, you are considered the Custodial Parent for Tax purposes. Hope this helps.

🙂