When a child is supported by his or her parents, the dependency exemption is normally a simple matter. However, the situation is much more complicated when it comes to divorced or separated parents.
Law
A child is normally considered the dependent of the parent who has custody of the child. Sec. 152(e) states that a child, supported by his or her divorced or separated parents, will be the dependent of the noncustodial parent only if the custodial parent signs a written declaration that the custodial parent will not claim the child as a dependent for a particular tax year (Sec. 152(e)(2) (A)). In addition, the noncustodial parent must attach the written declaration to his or her tax return (Sec. 152(e)(2)(B)). If the child spends exactly 50% of the time with each parent, the custodial parent is deemed to be the one with the higher adjusted gross income (Regs. Sec. 1.152-4(d)(4)).
Note that child support, alimony, or any other payment by either parent is never considered. The custodial parent can claim the dependent unless the right is released for a particular year or years.
Attachment Required Before July 3, 2008
Prior to the enactment of Regs. Sec. 1.152-4(e), the IRS stated in Publication 501, Exemptions, Standard Deduction, and Filing Information, that a noncustodial parent could attach to his or her tax return certain pages of a divorce decree that conformed to the substance of Form 8332, Release/Revocation of Release of Claim to Exemption for Child by Custodial Parent, to serve as the written declaration required by Sec. 152(e)(2) (B). However, the divorce decree had to state (1) that the exemption is available without regard to any condition, such as payment of support; (2) that the custodial parent will not claim the deduction; and (3) the years in which the noncustodial parent can claim the deduction.
Regulations After July 2, 2008
Effective for tax years beginning after July 2, 2008, Regs. Sec. 1.152-4(e) specifies the details of the written declaration to be attached to the tax return, and a divorce decree no longer qualifies.
In the written declaration, the release must be unconditional. For instance, it cannot be dependent upon the payment of child support. The release must specify the year or years for which it is effective and must name the noncustodial parent (Regs. Sec. 1.152-4(e)(1)(i)). Form 8332 is used for this, but a substitute form may be used as long as it is only for the release of the dependency exemption (Regs. Sec. 1.152-4(e)(1)(ii)). Because the substitute form can be used only for the release of the dependency exemption, the divorce decree cannot be used.
The general rule is subject, however, to the rule in Regs. Sec. 1.152-4(e)(5), which allows a noncustodial parent to continue to attach pages of a divorce decree executed on or before July 2, 2008, if the pages constitute a statement substantially similar to Form 8332 under the requirements in effect at the time the decree was executed.
Swafford
It is very important for the noncustodial parent to follow the regulations. A recent case illustrates this point. In Swafford, T.C. Summ. 2009-82, the taxpayer was the noncustodial parent of his daughter. There was an agreement under a court order from a state court that as long as the taxpayer paid his child support, the exemption would go to the taxpayer in even years. In 2006, the taxpayer was current in his child support payments, so he claimed the daughter as a dependent.
Unfortunately, he did not have a signed Form 8332 or its equivalent. Therefore, the court held that the taxpayer had not satisfied the express requirements of Sec. 152(e), so he was not entitled to the exemption. The tax court noted that “[t]he mere fact that the State court granted the taxpayer the right to claim the dependency exemption deduction is immaterial because a State court cannot determine issues of Federal tax law.”
Reason for Form 8332
Chief Counsel Advice (CCA) 200925041 spells out why Form 8332 or its equivalent would be required. According to the CCA, in amending Sec. 152(e) Congress wanted to avoid problems with substantiating whether conditions were met. For instance, in a situation such as that in Swafford, Congress did not want the IRS to have to determine whether the child support payments were made so that the noncustodial parent could claim the exemption.
Conclusion
If a taxpayer is a noncustodial parent and wants to claim the child as a dependent, he or she must be sure to get the release signed and in writing, even if there is a court order to allow the noncustodial parent to claim the child. Such an order violates Regs. Sec. 1.152-4(e) and does not have an effect on the operation of federal tax law.
EditorNotes
Mark Cook is a partner at Singer Lewak LLP in Irvine, CA.
Unless otherwise noted, contributors are members of or associated with Singer Lewak LLP.The editor would like to offer a special thanks to Jennifer Allison, J.D., for her assistance with this column.
For additional information about these items, contact Mr. Cook at (949) 261-8600, ext. 2143, or mcook@singerlewak.com.
