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May 04, 2007

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Trish

It means that your final judgment gives your ex the right to claim the child certain years. If you both claim the child and the IRS gets involved they go with custody. But he could take you back to court since you are in violation of the judgment. Your judgment may even require you to give your ex-husband a signed Form 8332 on the years he can claim the child. Form 8332 is an IRS form that is filed with your ex's return when he claims the child. Your tax professional can get you a copy of the form.

Allison

Won't the new law override these agreements? And will these agreements made in 2008 forward be enforceable?

Allison

Trish

Allison, I am not sure what you are asking. The law outlines how the IRS will determine who they give exemptions to when two or more people claim the same person. The exemption can be given to the non-custodial parent as long as the 8332 is used.

Gerald markham

I have read with great interest your blog on the new proposed IRS regulation regarding its proposed refusal to give effect to divorce decrees providing a noncustodial parent may take their children as a dependent for income tax purposes. Can you tell me whether this regulation has become final and if not whether it is likely to become so in time to apply to tax year 2007? I am presently responding to an IRS letter disallowing a noncustodial father an exemption in 2006 whose divorce decree unconditionally provided he could claim one of the parties three children as a deduction. And in fact in years prior to 2006 he took one of the three and the mother (as was her right) claimed the other two. However by 2006 both of the two older children had turned 18 and only the youngest age 16 qualified for the claim. So rather than lose the substantial tax benefit permitted by this exemption the mother refused to honor the father's rights under the divorce decree and instead took the deduction for this child as did the father claiming his right to do as provided in his divorce decree (as specifically described in the 2006 IRS Instructions to form 1040 pg 21 (pertaining to post 1984 divorce decrees). We are presently sending a letter (again supported by the divorce decree and these pages from the 1040 instructions) to IRS demanding they honor this claim in 2006 but it would be useful if I had a copy of the regulation prior to the 2007 proposed changes. Can you identify the CFR citation to the prior regulation (as well as the new one) before 11/28/07 when my response to the IRS is due? Meanwhile thank you for your insightful and timely analysis of this rather complex issue.

Jerry Markham
Attorney at Law
Kodiak, Alaska

Gerald markham

I have read with great interest your blog on the new proposed IRS regulation regarding its proposed refusal to give effect to divorce decrees providing a noncustodial parent may take their children as a dependent for income tax purposes. Can you tell me whether this regulation has become final and if not whether it is likely to become so in time to apply to tax year 2007? I am presently responding to an IRS letter disallowing a noncustodial father an exemption in 2006 whose divorce decree unconditionally provided he could claim one of the parties three children as a deduction. And in fact in years prior to 2006 he took one of the three and the mother (as was her right) claimed the other two. However by 2006 both of the two older children had turned 18 and only the youngest age 16 qualified for the claim. So rather than lose the substantial tax benefit permitted by this exemption the mother refused to honor the father's rights under the divorce decree and instead took the deduction for this child as did the father claiming his right to do as provided in his divorce decree (as specifically described in the 2006 IRS Instructions to form 1040 pg 21 (pertaining to post 1984 divorce decrees). We are presently sending a letter (again supported by the divorce decree and these pages from the 1040 instructions) to IRS demanding they honor this claim in 2006 but it would be useful if I had a copy of the regulation prior to the 2007 proposed changes. Can you identify the CFR citation to the prior regulation (as well as the new one) before 11/28/07 when my response to the IRS is due? Meanwhile thank you for your insightful and timely analysis of this rather complex issue.

Jerry Markham
Attorney at Law
Kodiak, Alaska

Shelly

I signed a Form 8332 for the 2004 tax year, during my divorce. My ex husband and I both claimed her for 2006 and I recieved a notice saying that I needed to be sure that I was able to claim her as my dependant. She lives with me full time (100%) phyisical custody. How do I get a copy of that 8332 form that I signed, as I do NOT have on with the copy of the Judgement I had recieved from the court. Thank you!

Trish

If you didn't save a copy of the 8332, then I doubt you can get a copy unless your ex gives you one. Please check with your tax preparer about the letter you received.

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    A reader should seek advice from an independent tax adviser with respect to the information on this blog based on the reader’s particular circumstances. This advice is intended to be general information and cannot be used for the purpose of avoiding penalties that may be imposed by the IRS regarding the transaction or matters discussed here.
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