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kat4tax-
New Member

IRS goes by physical custody when they are stating non-custodial and custodial??

The parent who has the child more that 1/2 the year is considrred the custodial parent by the IRS regardless of which one the court has issued as custodial parent??

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macuser_22
Level 15

IRS goes by physical custody when they are stating non-custodial and custodial??

Correct.  Legal custody by a court is not Tax custody.  The custodial parent that has physical custody by IRS rules (Federal law) can claim the child unless they release the exemption to the other parent with a signed 8332 form.  The non custodial parent can then claim the exemption and child tax credit - nothing else. Without the 8332 for  the non-custodial parent can claim nothing.

A court order cannot override Federal tax law, but must be enforced by the court that issued the order by holding the parent that refuses to issue the required 8332 form in contempt of court with possible criminal penalties.

**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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5 Replies
macuser_22
Level 15

IRS goes by physical custody when they are stating non-custodial and custodial??

Correct.  Legal custody by a court is not Tax custody.  The custodial parent that has physical custody by IRS rules (Federal law) can claim the child unless they release the exemption to the other parent with a signed 8332 form.  The non custodial parent can then claim the exemption and child tax credit - nothing else. Without the 8332 for  the non-custodial parent can claim nothing.

A court order cannot override Federal tax law, but must be enforced by the court that issued the order by holding the parent that refuses to issue the required 8332 form in contempt of court with possible criminal penalties.

**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.**
kat4tax-
New Member

IRS goes by physical custody when they are stating non-custodial and custodial??

The physical custodial parent has the child in their custody more than 180 days/yr.  They are the ones who claim all credits and deductions for the child regardless of who the courts have awarded as the custodial parent or as the parent that gets to claim all deductions, credits and exemptions  For the court awarded custodial parent to claim the child the physical custodial parent (IRS tax law) would have to issue the 8332 form to the non custodial parent (IRS tax law).
kat4tax-
New Member

IRS goes by physical custody when they are stating non-custodial and custodial??

Is that the way Federal tax law is?
macuser_22
Level 15

IRS goes by physical custody when they are stating non-custodial and custodial??

The IRS will not referee divorce custody situations - they go strictly by physical custody.  If the custodial parent refuses to provide the signed 8332 so that the non-custodial can claim according to a local court decree the remedy is the family court that entered the order.  The parent could be held in contempt but the IRS will not get involved.

There is one exception and that is pre-2009 divorce decrees that meet the strict IRS requirements (not many do).

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.

Reference IRS Pub 17 page 28 & 28
<a rel="nofollow" target="_blank" href="https://www.irs.gov/pub/irs-pdf/p17.pdf">https://www.irs.gov/pub/irs-pdf/p17.pdf</a>
**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.**
Adrienpadovani
New Member

IRS goes by physical custody when they are stating non-custodial and custodial??

What about jlint legal custody but mother awarded physical custody. Child lives in father home due to a pfa that was issued allowing mother and child to stay in the home while he wasnt allowed to dwell in it or have contact. Mother provides everything for child and even pays some Bill's for home and food, maintenance.  Father claimed child and I tried to efile n was denied. He think because it his paid off home that he is intiled to claiming child?. He has no overbite with child n is supervised. Help?. 

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