Discussion:Dependency joint custody
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Discussion Forum Index --> Tax Questions --> Dependency joint custody
| 11 January 2008 | |
| TP Wife and ex husband have two kids. Joint custody. Court papers say that each parent will take one child each as a dependent. Question I have is, do the parents have to prove child lived with them over half 2007? What if they can't prove it? Does the tie-breaker rule kick in and parent with higher AGI get the deduction, regardless of what the court papers say? | |
Death&Taxes (talk|edits) said: | 11 January 2008 |
| Have either remarried? If not, you also have a HOH potential conflict. Decrees mean nothing today; see http://www.ustaxcourt.gov/InOpHistoric/Har9ris.TCM.WPD.pdf. I could suggest each fill in and give the other Form 8332 for the dependent to be claimed, but be careful filling it out regarding HOH status.
At some point, law schools should be teaching divorce taxation and its elements to the prospective attorney. Were I advising someone in such a situation where the non-custodial parent was to receive the dependency, or it to be alternated, I would insert language requiring signing of Form 8332 into the agreement. | |
| 11 January 2008 | |
| Hi I think you are over thinking this . Look at the regular rules for divorced parents. Normally the custodial parent gets the deduction, period. If the custodial parent allows the noncustodial parent to take it done, period. As long as the child is in the custody of one or both for more than 1/2 of year is one requirement. Noncustodial parent doesnt have to have the child more than 1/2 half to get the deduction under these requirements. So what are your facts and issue? bye | |
Death&Taxes (talk|edits) said: | 11 January 2008 |
| Maybe I am too paranoid, but I think someone is worried that the other party will claim the dependent.
I spent twenty minutes on the phone with my sister-in-law two days ago explaing why when filing her adult son's return, she could not claim his child without getting Form 8332 from his ex who had custody, though the decree awards the child to him this year. He was incarcerated for seven months and in a half-way house the rest of the year. His Mom, who had legal POA, was using his 401K monies to pay his child support and thus there will be tax. By the way, he is a 36 year old accountant. | |
| 11 January 2008 | |
| Hi D&T your comment about the decree means nothing and the case doesnt apply here where we have the decree allowing both to claim a child. The decree can be attached to the tax return. The tie breaking rules dont apply if each claims one. bye | |
| 11 January 2008 | |
| From Prop. Reg. 149856-03
"Sections 151 and 152, not state law, determine whether a divorced or separated parent may claim an exemption for a child for Federal income tax purposes. A state court order or decree does not operate to allocate the federal exemption between parents." DT - Do you think WesR just hit a banana ball? By the way Wes, I shot my first sub par nine last week - one under. | |
| 11 January 2008 | |
| Neither has remarried. TP says that they actually do split custody with ex-husband getting both kids every other week. I doubt seriously that either could "prove" that they have the kids in their homes over half the year. If that is the case and they can't prove it, doesn't that eliminate the kids as qualifying children? Maybe a dumb question, but does that possibly open the door for qualifying relative? | |
| 11 January 2008 | |
| Hi no way I hit straight now Sol :) You can attach the decree and if both are doing one each what is the issue? A form 8332 is not the only way to show a written declaration release for the noncustodial parent to take the exemption. check out IRS pub 504 (2006) p.9 Your porposed regs which are not effective still allow separation agreements to qualify if the dependency exemption is not conditioned on the payment of support or meeting of any other condition and the agreement conforms to the substance of form 8332. 1.152-4(f) ex 5. That was YOUR ball that went out of bounds. And please I never oink. bye | |
| 11 January 2008 | |
| Hi Sky if the decree complies with the rules and each gets one WHAT is the problem? No one has to prove more than half. Am I missing something here or are we debating you worrying about something hapennig which isnt? bye | |
| 11 January 2008 | |
| I understand that each parent wants to claim one. But what about the "over half the year" qualification? Maybe I'm over thinking this one, but I tend to do that. No matter what the court papers say, if all the qualifications aren't met, doesn't that prohibit TP from claiming even one of the children? | |
| 11 January 2008 | |
| Hi READ THE RULES ON DIVORCED PARENTS AS LONG AS THE CHILD STAYS WITH one or both for more than 1/2 year. READ 152(e)(1)(B). These people have agreed. As Roger Clemens would say "I dont give a rats ass " which one has the kid for more than 1/2. It makes no #$@@!!##@@ difference if they are not fighting. gotta go bye
PS just having fun guys | |
| 11 January 2008 | |
| "PS just having fun guys"
Aren't we all stirring the pot - | |
Death&Taxes (talk|edits) said: | 11 January 2008 |
| I see Wes' point: their signatures on the decree more or less satisfies that requirement but then under the provision to attach a post-1984 divorce agreement copy Publication 504, 2007, pages 8-9, this procedure is for the non-custodial parent. Could this complicate both filing HOH? Can either file HOH.
Men and Women of Goodwill will adhere to an agreement until some smart-ass tax preparer convinces them to try for more. | |
| 11 January 2008 | |
| Nice discussion. Agree with WesR except about the idea of attaching the divorce decree to the return. We used to be able to get away with this but under newer rules, the decree does not help unless it clearly contains the 8332 language.
If both parents agree, and no record exists of where the kids slept every night, then I would just go from there. I would try to figure out which parent had the kid for more than 1/2 the year and use that for the HH status. If the parents say that one had one kid for more than 1/2 the year, and the other had the other kid for more than 1/2 the year great. If I was worried about it I might get each parent to sign a statement saying that each had one kid for more than 1/2 the year in case the parents later start to fight or one tries to claim both kids. | |
Death&Taxes (talk|edits) said: | 11 January 2008 |
| I suppose EZ brings up another thought: should you even do both returns? | |
| 11 January 2008 | |
| Thanks for that cite WesR. After reading it, things were more clear. D&T, I'm not doing both returns. But my client does communicate alot with her EX, although it's not always pleasant communication apparently.
Thanks for all the replies. | |
