Originally published on Forbes.com May 24th, 2013
Dependency exemptions seem to take on a role in divorce negotiations that is out of proportion to their economic significance. Given the time that sometimes goes in to negotiating them, it is amazing how often the details get blown. If the custodial parent does not provide the non-custodial parent with Form 8332 or its equivalent, the non-custodial parent is not entitled to the dependency exemption, regardless of what the probate court says. This rule has produced quite a few frustrating Tax Court decisions.
A recent Massachusetts appeals decision in the case of Phall Iv and Samath Hang was an attempt to blow these Tax Court decisions back into probate court. The appeal failed, but it illustrates one more instance of needless litigation resulting from inattention to detail.
Samath Hang was ordered to pay $228 per week in child support. The judgment also held that he was to be entitled to claim both unemancipated children as dependents. The tax portion of the judgment was appealed:
The wife has appealed from so much of the divorce judgment as pertains to “taxes.” More specifically, she argues that “ith regard to Federal tax matters … the tates have been preempted,” and “he present system of dependent allowances and credits arising there from no longer allows State courts to make awards of dependents.”
The theory about the lack of power of state courts to allocate dependency exemptions was supported by one of the examples in the regulations.
Pointing to Example 18 of Treas. Reg. §1.152-4, the wife states that even a divorce decree requiring a parent to execute a release so that the noncustodial parent can claim the exemption (something that the judge did not order in the present case) is “ineffective to allocate the right to claim the child as a dependent.” Therefore, in the wife’s view, the judge’s order awarding the husband the right to claim the children as dependents is “unlawful,” and she is entitled to claim both children as dependents.
The point of that example is that if a custodial parent refuses to execute Form 8332 in defiance of a probate court order, the noncustodial parent is still out of luck as far as the IRS and the Tax Court are concerned. That is how the appeals court saw it.
The judge did not err in allowing the husband to claim the children as dependents on his State and Federal income tax returns. Accordingly, we remand this matter to the Probate and Family Court, where the judge shall consider issuing an order that the wife execute a written declaration releasing her claim to the dependency deductions.
Some Practical Points
I suppose I should not be one to be criticizing judges, but it seems to me as a tax practitioner, that an order allocating the dependency exemption should include a specific instruction to the custodial parent to execute Form 8332. Taxpayers have sometimes gotten the Tax Court to accept written statements in lieu of Form 8332, but it seems rather silly to settle for that when a form is available. If the attorney for the non-custodial parent is going to spend time negotiating for the dependency exemption, he or she should see that there is follow-through.
Given all the tsoris that these rules can create, I would advise a noncustodial parent who can get any sort of concession for passing on the exemption to take the concession. I’d even go so far as to say that if you think you and your ex are both going to end up leaving money to the same kids, don’t even bother with it.
In Massachusetts, it seems to be common to alternate the exemption from year to year, which seems to be a formula for fomenting needless bickering. My theory for the emphasis on the dependency exemption in divorce negotiations is that it somehow makes the noncustodial parent feel validated as a parent. The truth is that the IRS and the Tax Court have no interest in what kind of a parent you are and would be ill-equipped to make a determination if they did.
You can follow me on twitter @peterreillycpa.
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