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]

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@Rachel14 wrote:

Why would my judge say that form 8332 is not required for the non custodial parent?

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Because your judge is not a CPA, tax accountant or enrolled agent. 

[Opus 17]

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@Sballerstein wrote:

Even if the non custodial doesn't utilize any of his parenting time? He is in contempt for that. 

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You must understand the difference between the IRS and everything else.

The IRS only follows the tax laws.  The IRS does not mediate disputes between divorced parents.  The IRS may be forced to make a determination if both parents claim the same child, but when that happens, the IRS will follow the tax laws.  The tax laws say the custodial parent is the only parent with the automatic right to claim a child as a dependent, and the non-custodial parent can't claim the child unless they get a signed form 8332 from the custodial parent.

Everything else is a family court matter and the IRS doesn't get involved.  If the judge orders you (the custodial parent) to allow the non-custodial parent to claim the child, and you don't cooperate, you will have to explain it to the judge.  You might have good reasons for not-cooperating, but you have to bring that to the judge, not the IRS.   Or, if the judge orders the custodial parent to to allow you (the non-custodial parent) to claim the child, and the custodial parent doesn't cooperate, you have to take it to the judge, not the IRS. 

[Rachel14]

My past attorneys have given me wrong advice. I was told we would have to go back to court every year for the judge to determine if non custodial parent could claim a dependent. At that time the judge would have me sign form 8332. If I was never asked to sign it then I could claim a dependent. All together the non custodial parent should have never claimed a dependent when he didn’t even have overnights yet. That’s my opinion. The tax credit should be to raise a child with for expenses. What good does it do to give to the parent not even raising the child. Seems me messed up. 

[Willianie0902]

can a judge give a parent that only gets the kids 2 months of the year the right to claim them on their taxes when other parent has them for 10 months of the year ? Mom wants to claim children but only gets them for the summer while children live all year round with dad. Is this even legal ?

[SweetieJean]

@Willianie0902 We cannot answer legal questions here. Please see an attorney.

[Hal_Al]

@Willianie0902 Your question have been answer above,  including the potential consequences of not following the court order. But, as others have pointed out, this is not a legal forum (no lawyers here).

Q.  Can a judge give a parent that only gets the kids 2 months of the year the right to claim them on their taxes when other parent has them for 10 months of the year? Is this even legal ?

A. Yes. It happens "all the time".

[amberunsworth77]

Did you get an answer from a tax attorney on this and how to appeal it with the courts? I am having the same issue and I am the CP, have the child 223 nights a year but the opposing attorney had placed the terminology in a custody case between his father and me (who were never married) that he gets to claim him in even years, and although I objected, the judge signed off on it and allowed it.  

[Opus 17]

@ amberunsworth77 

Who are you actually replying to? This topic is more than five years old and has more than 100 comments.

Under federal tax regulations, only the custodial parent has the right to claim the child as a dependent, and the non-custodial parent can only claim the child as a dependent if the custodial parent signs of form 8332 release.  If the custodial parent doesn’t sign a release, the IRS will be perfectly happy to allow the custodial parent to claim the dependent.

However, if the custodial parent fails to follow the orders of the family court, the Family Court can penalize the custodial parent in several possible ways.  If you are unhappy with the terms of your custody agreement, the place to appeal is not Tax Court, but your local Family Court.

[DalhousieLucy]

If the judge signs the order that is what you have to follow. There are many poorly informed people who weighed in on this post. The bottom line is in my personal experience and in many other cases I know of first hand and upon consulting family law attorneys; family court  judges often overstep their purview and order things that conflict with IRS  federal law. As a family court participant you are at their mercy and it is seldom fruitful to disagreed or question a family court judge. I requested a reconsideration after my family court judge gave the child tax deduction to my ex,  for five years straight , even though I am the custodial parent and pay for medical insurance and many things that he does not pay for. The judge denied my request to reconsider and therefore I was out several more thousand dollars of attorneys fees and he still has the deduction. There are people on this site who say oh you have to sign that form well I’ve never signed that form and he has obtained the child tax deduction without me signing it.  I recommend treading very carefully when dealing in Family Court matters, because, by simply pointing out that the judge may have made a mistake, or overstepped their authority that can result in a situation, where they become vindictive, and do things like threaten to take custody away, or provide a more unfair ruling, also when dealing with Family Court matters, it’s very expensive. I did find one person on the East Coast who was trying to appeal an unfair family court ruling where the non-custodial parent was granted the child tax deduction I am unsure what materialized in her case, but in my case, I tried to have the judge reconsider and she did not grant my request so my ex , a non-custodial parent who makes three times as much money as I do, and pays very little in child support gets the child tax deduction . He also was able to get the Covid relief stimulus funds which amounted to very little because od his higher income bracket.  

[DalhousieLucy]

Ideally, the non custodial patient is supposed to only be able to claim the tax credit if the custodial parent signs 8223 but that is not what happens in practice. I have not signed and the non custodial parent claims our child every year. His tax accountant wrote in the form “custodial parent refused to sign” and has successfully filed annually since 2015

[DoninGA]

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@DalhousieLucy wrote:

Ideally, the non custodial patient is supposed to only be able to claim the tax credit if the custodial parent signs 8223 but that is not what happens in practice. I have not signed and the non custodial parent claims our child every year. His tax accountant wrote in the form “custodial parent refused to sign” and has successfully filed annually since 2015

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If you also filed tax returns claiming the child and the child tax credit on your tax returns, you both should have received notices from the IRS where they investigate who was the custodial parent.  The loser of the IRS investigation would have to pay back any tax refund based on the improperly claimed dependent plus penalties and interest.

Did that not happen?

[Opus 17]

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@DalhousieLucy wrote:

Ideally, the non custodial patient is supposed to only be able to claim the tax credit if the custodial parent signs 8223 but that is not what happens in practice. I have not signed and the non custodial parent claims our child every year. His tax accountant wrote in the form “custodial parent refused to sign” and has successfully filed annually since 2015

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If you don't claim the child, the IRS won't have anything to investigate, they don't know where the child lives and don't know the claim is wrong unless you tell them.  But if you do also claim your child as a dependent, the IRS should investigate--per regulations, they are not allowed to accept any other written excuse for custody orders signed after 2008.  The IRS should send a notice CP87A to both taxpayers who claimed the child. 

https://www.irs.gov/individuals/understanding-your-cp87a-notice

If both parents continue to claim the child, the IRS will send a CP75 notice asking you to provide proof.  https://www.irs.gov/individuals/understanding-your-cp75-notice

I can't speak to whether or not the IRS enforces the regulations in the same in every case--they should do so.  And the regulations say the dependent goes to the custodial parent.

However, as mentioned, if the custodial parent is ordered to allow the non-custodial parent to claim the child and they refuse or interfere in some way, the non-custodial parent can complain to the family court. 

[queenledgen]

If you don't mind sharing your insight. My child's father and I have a court order that says he can claim one of our children for taxes. I never signed an 8332 form. Do I have to listen to the court order? if so, how do I go in the correct order of revoking it?  Do I have to since I never signed the 8332 form to begin with?

Thanks in Advance!!

[Opus 17]

@queenledgen 

You are approximately comment number 120 on a long discussion, if you read the prior comments you will probably find many helpful interpretations of your situation.

In general, the non-custodial parent cannot claim a child as a dependent unless the custodial parent signs a form 8332 dependent release.  However, the IRS has no specific way of catching parents who file incorrectly. The only way the IRS is likely to be alerted to your situation is if you also claim your child as a dependent.  In that case, the IRS will award the dependent claim to you if you are the custodial parent because you did not sign a release. The IRS does not follow and does not care about state court custody orders.

However, you also have to understand that the only way the non-custodial parent can claim the child as a dependent without form 8332 is if they file their tax return as if they were the custodial parent. This may allow them to claim certain tax benefits that only the custodial parent can claim. The ability to use a child to qualify for head of household status, claim the dependent care credit, or claim EIC always stays with the custodial parent and can’t be transferred by the form.  Likewise, if you are silent as to the child and simply allow the other parent to claim him, you may be depriving yourself of certain tax benefits.  

If you have a custody order, my suggestion is that you issue a form 8332 to the other parent. When you file your tax return, you will list that child on your tax return and answer the dependent interview questions to say that the child lived with you more than half the year but that you are releasing the child to the other parent with form 8332.  This will ensure that you claim any benefits of being the custodial parent that might apply to your situation. It will also ensure that your ex partner cannot claim any benefits they are not entitled to.

if you want to ignore the custody order and claim both children, the IRS will not dispute this. However, the other parent can take you to Family Court to enforce the order. Family courts have a variety of powers. They can’t order you to violate the federal tax law, but, the Family Court could order you to sign the release form or pay a fine, or the Family Court could reduce your child support, or the family court could even throw you in jail for contempt.  I would never advise violating a court order without getting strong legal advice. If you want to change the custody order so that you do not have to sign the release form and allow the other parent to claim the child on their tax return, you would have to go to the family court and request a modification of the court order.

[Sballerstein]

How much parenting time does he have? You can be charged with contempt but if he is behind on support or doesn't have any parenting time or if you get any gov assistance then you can claim them. If he files without the form 8332 then send form 3949A to the irs. I can get you case laws to help fight the contempt if you need them.