Non-custodial parent has been claiming child as a dependent without form 8332

[vineyardmom7]

Non-custodial parent has been claiming child as a dependent without a form 8332 because it says we alternate years on custody order. He only has her 30% of the time and pays minimum child support payment as he is self employed so he does not report his taxes correctly. I just found out that he cannot do this without the form 8332. He has claimed her for 3 years and I lost out on the exemption. What is the recourse? He says the court order is valid and I am wrong.

[AliciaP1]

If there is a court order specifying that you will alternate years to claim the dependent, that suffices to file a tax return.  It is supposed to be attached to the tax return of the non-custodial parent each time they claim the dependent.  Form 8332 is not required when a court order can serve to provide the same information as the form.

[Mike9241]

form 8332 instructions

Post-1984 and pre-2009 decree or
agreement. If the divorce decree or
separation agreement went into effect after
1984 and before 2009, the noncustodial
parent can attach certain pages from the
decree or agreement 

instead of Form 8332, provided that these
pages are substantially similar to Form 8332.

Post-2008 decree or agreement. If the
divorce decree or separation agreement went
into effect after 2008, the noncustodial parent
can’t attach certain pages from the decree or
agreement instead of Form 8332.

so if post 2008 decree and you did not furnish 8332 to the noncustodial parent, you could file amended returns for 2018-2020 to claim the dependents based on the tax laws.  however, your ex could take you to court for violating the court order.  you would have to ask a lawyer what penalties the judge would impose on you. 

the IRS doesn't care what the courts say and the courts don't care what the tax laws say.

[vineyardmom7]

You are obviously not a certified tax accountant because that is a complete false statement and you should not be telling people false statements. You are going to get in trouble. Even I know the right answer.

[vineyardmom7]

How Court Custody Orders Affect Deductions

IRS Publication 504 covers who may claim a dependency exemption, and how, following a divorce or separation. Regardless of what the custody orders the court has issued, federal law determines your federal tax status. Therefore, the IRS requirements supersede a county or state court order.

[DawnC]

As Mike9241 stated, you can file amended returns and claim your dependent if you were the custodial parent each year.   You were the custodial parent if the child spent more than half the year with you.   As long as the child was living with you, you qualify to claim the dependent and take all the child related tax credits.   Even if you had given him the Form 8332, as a noncustodial parent, all he can claim is the exemption ($0) and the Child Tax Credit (and he needs the form from you to even do that).   The ability to qualify for Earned Income Credit, Head of Household, and the Dependent Care Credit, always stays with the custodial parent and can't be waived, shared, or transferred.

What Happens When Both Parents Claim a Child on a Tax Return?   If you file amended returns to claim the child, the IRS will intervene and if he was not the custodial parent, he will likely be required to amend his returns and pay back any credits he did not qualify for.    The IRS is not going to allow him dependent credits for a child that did not live with him for more than 6 months.  If he answered the dependent questions honestly, and answered the child only lived with him for one third of the year, he would not have received any credits or exemptions.      

How to amend (change or correct) a return you've already filed

[Shelbykeebler]

This is 1000% incorrect and I found out the hard way after my ex had violated our court order and claimed our son. She got charged with contempt and had to file an amended return but the irs would not acknowledge or respect the court order. They told me a court order meant nothing to them and if it happens again to take her to court again.