One of the questions that family law attorneys are frequently asked is under what circumstances can a non-custodial parent claim a child as a dependent on his/her income tax returns. Fortunately, the Family Law Taxation blog has published the following article, which addresses that very issue in great detail:
Non-Custodial Parent’s Deduction for Dependents: Tax Court Denies Dependency Deduction for Non-Custodial Parent Because Taxpayer Did Not Include a Signed Form 8332 With His Return
The tax consequences of separations can impact a number of areas. One such area is the deduction for dependents.
In Smith v. Commissioner, the United States Tax Court (Tax Court) addressed the issue of whether the taxpayer, a non-custodial parent, could claim the dependency deduction. The Tax Court also addressed whether the taxpayer could claim the child care credit, child tax credit, and earned income credit.
The taxpayer had a biological child with a woman (mother) that he never married. During the year in question (2003), the taxpayer and the mother did not live together and the son lived with the mother and her husband during the majority of the year. The taxpayer and the mother did not have a written agreement regarding who could claim the child as a dependent. Both the taxpayer and the mother claimed the child as a dependent and the IRS denied the taxpayer’s dependency deduction, as well as other child-related credits. The taxpayer did not attach to his 2003 return a Form 8332 (Release of Claim to Exemption for Child of Divorced or Separated Parents) or similar statement.
Deduction for Dependents: A taxpayer is generally allowed a deduction for each dependent (see IRC section 151). A dependent includes a son or daughter of the taxpayer in which the taxpayer provides over half the support during the year (see IRC section 152).
Divorced or separated parents: A child that receives over half its support from parents that are divorced, separated or live apart during the last six months of the year is treated as receiving over half the support from the parent that had custody for the greatest part of the year. The non-custodial parent may claim the dependency deduction if the individual files Form 8332 or similar statement that the custodial parent will not claim the child as a dependent.
Court Decision: The Tax Court held that the taxpayer was not entitled to the dependency exemption deduction since he was a non-custodial parent (i.e., did not have custody over half of the year) and did not attach Form 8332 to his return.
The Tax Court also denied the child care credit and child tax credit since those credits require that the taxpayer satisfy the dependent requirement under section 151. Lastly, the Tax Court also denied the earned income credit because the child’s principal place of abode was not with the taxpayer for more than half the year.
FAMILY LAW TAXATION is subject to this Circular 230 Disclosure.
Source: "Non-Custodial Parent’s Deduction for Dependents: Tax Court Denies Dependency Deduction for Non-Custodial Parent Because Taxpayer Did Not Include a Signed Form 8332 With His Return" published at the Family Law Taxation blog.
16 Responses to Dependency Deduction Guidelines for Non-Custodial Parents
I need to find out the standard visitation for a non-sustodial parent. the parents were never married, never lived together. Please send me any info you have regarding this.
Thanks
Do you take cases in Marion County?
What are your fees? We live in Charleston and the family court regarding our particular issue takes place in Marion county. Thank you.
Do you have a sliding fee scale?
Thanks and God bless.
Need to know if Georgia reconizes SC custody rulings.
I presently have legal custody of my 17 year old daughter. She moved in with her mother in august. Her mother enroled her in school in another county without my consent, Law will do nothing about it. Now she has sent me a letter stating she has sole custody and is entitled to this years tax deduction. This has not been to court and i legeally still have custody.Final decree of divorce states i am to claim minor child on income tax.Can she do this? What are my legal rites?Been to court several times but apparently she feels exempt from the law.HELP!!!!!!!
Can a non-custodial parent get joint-custody in South Carolina if he is paying child support?
My ex-wife will not sign form 8332 for this years taxes. Previous years she has signed this form.
My ex-wife and myself in our separation agreement state that who ever has the “great tax advantage” should claim the two children as dependants on their taxes.
She is asking for my tax return to determine this issue. I am refusing to provide her my tax return. How does the IRS determine the greatest tax advantage? Is the person making the most money?
I am filing as “head of household” and one of my “dependents” is a non-custodial parent (NCP) who has a child support order…is it legal to claim an NCP on state & federal income tax form (as a dependent) and will this affect their child support order?
I read this article on Dependency Deduction Guidelines for Non-Custodial Parents. My question is what if the custodial parent is not working and receives SSI?
I am the custodial parent for a child with a man I was never married to. We went to court for child support and I originally agreed to let him file our daughter on his taxes every other year which is stated in our paperwork. Since then, my child support payments were decreased at the second hearing because I got a raise. I no longer want him to file her on his taxes. Can I just change my mind and refuse or do I need to go to child support court to get this paperwork updated?
can the non custodial parent just go with courtorder for visitation to custodial parents with the law and take the child to start visitation at anytime. help and can the courts just still keep posponing court dates and asking me for purges . cause i cant afford it any more and all i need is paternity and modification. please please help and is there a lawyer that can call me at free or low cost i have been evicted 3 times with my current wife and child and cannt afford this anymore. Help 941-286-6303 my internet service will end soon i cant afford it anymore please call me or my current wife yolanda
The question I have is the same as Monique on April 14,2008. The custodial parent does not work (can but uses the system) and receives SSI. How does that effect the tax situation. Never married and it was not stated in the guidelines.
People please hire an attorney. I was desperate and had to file pro se. I just got divorced yesterday and was perplexed at the incompetent judge’s decision. (He had to ask the legal secretary what he should do? in front of us). In any case my ex husband has not paid or supported our children for two plus years. I came to court with receipts of medical, dental, daycare, clothing expenses, every single kind of proof that I have been supporting my boys and the Judge didn’t even bother looking at it. Instead he closed the deal by only requiring my ex to pay the minimum, threw my request for arrearage out the window because he felt that it would be too hard for my ex to ever pay so he denied it (my kids are the ones who lose out of that)and for the grand finale, he indicated that he could claim one child on income tax and I the other. My boys have visited their dad maybe 5 times in the past two years. He has not paid a dime. My kids have a court order that they cannot live with their Dad from a dependency case for domestic violence. So my question is can he really legally claim them if say for instance this year,if the children have only been to his home 5 times and he has not paid a dime yet? I thought they had to live 6 months or more in order to be claimed dependents. When I told judge about how he hasn’t paid and of course he couldn’t prove it, the judge retorted with “Well he is going to start paying in October”. Please anybody… any insight would be helpful.
I am a non-custodial parent of two children. We have a joint custody. I am up to date paid of my child and medical support since the beginning. I even paid her bi-weekly for the firs year of our divorce, which has doubled the child support for that year. And she has claimed the children all these years; although I made 4 times more than she does.
I asked if I could claim one, but she refuse and her husband now stated that he will claim both of my children.
Please help.
my sons father can claim my son everyother year according to the courts. he does not have custody of him and only gets him evryother weekend. does he have the right to claim him
My boyfriend {Now ex-boyfriend. Had been living back-n-forth from his dad’s to my dad’s place for over a year. Mostly we have had to stay at my dad’s place. My ex-boyfriend barley worked at all this past year, but as time as he got his w2 form in the mail, he moved out and moved in with his stepmom. He didn’t even give me and my child a reason for leaving and has cut all communication off with me. I am the custodial parent of mine and his child. My question is, is it legal for him to file earned income without my permission or signature? I hear, that he has been seen riding around in a nice truck, and as far as I know, he still has no job, so he must have purchased the truck with his tax return, and if he only worked less then six months last year, then how would he have gotten nice truck, by just claiming himself? Please right back, and let me know, if it was legal if he indeed file earned income, and if not, how to I go about reporting this action? Thank you so much.
I have 3 children. I divorced their dad this past year. But i am the costidial parent. Does he have the right to file at least one child? He’s also behind on child support.