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

[DalhousieLucy]

Basically true. I have never signed the 8332 form. My ex is the non-custodial parent but was deemed “entitled to the child state and federal tax exemption” for multiple years in a row. 

In my experience he has not had a problem claiming our child without the form.  Even though our child is with the other parent minimally he is also scooping up the stimulus checks for her while I pay for childcare even more so during the pandemic.  

It does not seem fair, but in my experience family court judges do not like having anything they do questioned and since a parent is at their mercy as far as parenting time etc. it seems these glitches are not  addressed nearly as often as they should be. 

[JamesG1]

My impression is that IRS Form 8332 Release / Revocation of Release of Claim to Exemption for Child by Custodial Parent is the ultimate piece of evidence that the IRS uses to determine dependency when two parents both claim the same child in the same year.

IRS Form 8332 is used to do the following:

• Release a claim to exemption for your child so that the noncustodial parent can claim an exemption for the child and claim the child tax credit, the additional child tax credit, and the credit for other dependents (if applicable), or
• Revoke a previous release of claim to exemption for your child.

[Rachel14]

This makes sense. How does it work when IRS letter is sent to everyone that claimed a child wrong or right and an identity theft form is submitted? 

[Opus 17]

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@Rachel14 wrote:

This makes sense. How does it work when IRS letter is sent to everyone that claimed a child wrong or right and an identity theft form is submitted? 

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In general,

If more than one person claims a child on their tax return, and the IRS sends letters, then if you are the non-custodial parent and can't prove you had custody more than half the nights of the year, your only hope is to have the signed form 8332.  If you are the custodial parent, you need to be able to prove that the children lived in your home.  You don't need a form 8332 to prove that, and if you had signed a form 8332 for the other parent, you have already lost before starting.  To prove the children lived in your home more than half the nights of the year, send the IRS copies of anything that will prove that.  Some examples might be:

1. Letters from the children's doctor or school about them, that were sent to your house (showing that the doctor or school district thinks you have custody most of the time)

2. Messages and emails from the other parent arranging pickup and drop-off -- if you can show the IRS that the other parent picks up the children every other weekend (or fails to pick up the children), then you have gone a long way to showing that you had custody more than half the nights.  Here, a diary or calendar may be useful, if you keep it in real-time, and back it up with proof.   Your recollections 2 years later will not be as convincing as a day planner you kept at the time. 

3. The IRS might look at a custody order showing you have custody most of the time, but since the IRS is not bound by custody orders, this is just one more factor that may help prove your case.

4. Photos and social media posts showing the children doing activities in your care.

5. If you live a fair distance from the other parent, then receipts from your babysitter or day care provider showing that the children were in care during the day close to your home, would also help to show that they were in your care over night.

6. Anything else you can think of showing that the children lived with you.

The identity theft affidavit doesn't prove anything.  it just shows that you are making the same accusation in a different way (the children lived with you and were claimed by the other parent) -- it's not proof of the accusation.  The offices that process the two different issues may not even talk to each other.

In your specific case I must direct you back to your attorney.  You seem to be taking steps to ensure that the other parent can't claim the children even though the judge ordered you to allow that.  (Even though the order violates federal tax law, the local judge has a lot of power unless you can successfully appeal to a higher court.). I suppose that as long as you don't claim the children as dependents, you could tell the court that you aren't interfering with the other parent's claim, and the IRS is just following their own rules.  But I would be very cautious here and not do anything without the advice of your attorney. 

[macuser_22]

Two different things.    Either the IRS denies the claim of the parent that did not submit a signed 8332 form and send them a letter request that form or they just pay the claim without the form.   The parent that did not live with the child cannot file an electronic tax return without either claiming to have an agreement signed by you and attaching it to the tax return (or mail it if the return is e-filed), or saying the child lived with them.

If two taxpayers claim the same child, and the IRS pays the claims, then in a year of so the IRS will send letters to both taxpayers asking them to supply information to support their claim that the child physically lived with them the required length of time. 

At that point they are not interested in any agreement or 8332 form because they have already the claim, they just want to establish which taxpayer the child physically lived with.

The supporting information is school records, medical records, any other documentation with the child's name and address, statements from neighbors, etc,  that would establish  which parent the child physically lived with.

The IRS will evaluate each claim and award the claim to one taxpayer, the other will have to pay back any refund plus interest and possible penalties.

[DivStAug]

How about it the original divorce ruling has couple of vague sentences under the Child Support section stating “The Husband shall be entitled to any dependency exception or tax credit permissible by law.  The Wife shall execute any IRS form required to allow the Husband to claim such exception, if available.”  
They don’t specifically mention Form 8332.  The custodial parents (wife)  attorney believes children don’t qualify as dependents for Husband as the statement indicates “if available” and they didn’t reside with him even 20% of the time.  Can a judge force wife to sign Form 8332 if the original divorce language isn’t specific?

[Hal_Al]

I'm not a lawyer, but clearly "any  IRS form required to allow the Husband to claim such exemption" means form 8332, which is the form currently available.  

[Opus 17]

@DivStAug 

If the judge believes their order was clear, and that you or your attorney are prevaricating or splitting hairs in violation of that order, the judge can certainly issue a contempt ruling, or do any of several other things to make your life very unpleasant.

This is actually one of the better court orders because it says that the ex-husband is allowed any credit allowable under law, and that the ex-wife must sign any forms required to allow the ex-husband to claim the credits.  Under the law, the parent who has custody more than half the nights of the year is the only parent entitled to use the child to qualify for head of household, or the earned income credit, or the dependent care credit, the noncustodial parent can claim the $2000 child tax credit, and for 2020 can claim the recovery rebate, but nothing else. This court order is in compliance with that because it does not suggest that the ex-husband should be allowed to file as head of household or claim EIC, it only says that the husband is allowed to claim any benefits allowable under law and that the ex-wife must execute whatever forms are necessary to make that happen.

[Opus 17]

@DivStAug 

ask your attorney if they will spend the night in jail for you or pay the fines for you if the judge holds you in contempt for refusing to sign the release form.

[Hooked38]

I have the problem that the custodial parent refused to sign the 2020 Form 8332 and filed her taxes.  Can I take her back to court?

Here is the wording...changed out the names.

“Commencing in calendar year 2018 and each year thereafter until modified by the court or written agreement signed by both Parties, Respondent shall claim Kid 1 and Kid 2 as dependents for tax filing purposes.  Petitioner shall execute IRS form 8332 to release the exemptions and return the form to Respondent within ten (10) days after receiving the form.  The court shall retain jurisdiction to assess penalties and reimbursement if the part entitled to the dependency exemption is assessed a penalty on the account of the custodial parent’s refusal to execute form 8332.”

[macuser_22]

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@Hooked38 wrote:

I have the problem that the custodial parent refused to sign the 2020 Form 8332 and filed her taxes.  Can I take her back to court?

Here is the wording...changed out the names.

“Commencing in calendar year 2018 and each year thereafter until modified by the court or written agreement signed by both Parties, Respondent shall claim Kid 1 and Kid 2 as dependents for tax filing purposes.  Petitioner shall execute IRS form 8332 to release the exemptions and return the form to Respondent within ten (10) days after receiving the form.  The court shall retain jurisdiction to assess penalties and reimbursement if the part entitled to the dependency exemption is assessed a penalty on the account of the custodial parent’s refusal to execute form 8332.”

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Contact your attorney.

[Hal_Al]

This may be helpful in your negotiations with the ex:

 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 dependency to him.

[Hooked38]

Not trying to claim the other child credits like earn income and daycare.  

[JeffreyR77]

The IRS does not get involved in determining if custody conditions are being followed or if terms of divorce decrees are being fulfilled.  Local courts do not have jurisdiction over the IRS.  

Just as each court has its administrative procedures and forms, the IRS also has its own administrative procedures and forms based in US law. 

The IRS recognizes the custodial parent as having the higher legal claim to a dependent unless they waive it in writing with Form 8332. 

The Family Court attorneys have the responsibility to include in divorce decrees the necessary language to align the tax law requirements with the Family law negotiations to allow for smooth sailing of child custody and tax filing matters.

Sometimes this process works easily, and sometimes taxpayers end up back in Family Court as they encounter the reality of the disconnects between their decree stipulations and the actuality of the tax law. 

From an IRS perspective, the noncustodial parent needs to have the signed Form 8332 attached to their tax return to back up their claim for any dependent that does not reside with them more than half the year.

[Opus 17]

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@Hooked38 wrote:

I have the problem that the custodial parent refused to sign the 2020 Form 8332 and filed her taxes.  Can I take her back to court?

Here is the wording...changed out the names.

“Commencing in calendar year 2018 and each year thereafter until modified by the court or written agreement signed by both Parties, Respondent shall claim Kid 1 and Kid 2 as dependents for tax filing purposes.  Petitioner shall execute IRS form 8332 to release the exemptions and return the form to Respondent within ten (10) days after receiving the form.  The court shall retain jurisdiction to assess penalties and reimbursement if the part entitled to the dependency exemption is assessed a penalty on the account of the custodial parent’s refusal to execute form 8332.”

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It appears that your judge is more knowledgeable than most, and the order is a correct implementation of the tax law.  The order clearly says the petitioner (I suppose that is your ex) must sign the form 8332 within 10 days of receipt, and the court retains jurisdiction to assess penalties if the petitioner does not sign.

So it looks like you need to send your ex a copy of form 8332 filled out with what you need, except for the signature, and use registered mail with proof of delivery.  If your ex  refuses to return the signed form, contact your attorney and make a claim to your family court judge for relief.  The court could order the other parent to sign the form in front of the judge, or could fine the other parent the dollar amount they are depriving you of, or reduce your child support, or do almost anything it wants to enforce its order.  But this is a matter for your attorney.