Here are the basic steps you’ll need to take, if you and your ex both claimed your kids on your tax returns. This is important to note: If both you and your ex filed for the deduction, whoever files second will automatically be rejected by the IRS, even if you’re the custodial parent and legally entitled to receive the refund. If you and your ex both claim your kids on your taxes, there are a few outcomes (as well as solutions) when you’re both claiming a dependency deduction. We hear this a lot from our clients around tax time: “When I filed my taxes in April, I was surprised to find out that my ex claimed the kids when it was my turn. Where there is a requirement to sign IRS waiver form 8332, you need to clip or attach the signed waiver to the actual tax return where the exemption is claimed.(866) 465-5395 Schedule a Consultation (866) 465-5395 Schedule a Consultation To take the dependency exemption as the non custodial parent, there must be language in the court papers that requires the custodial parent to sign the waiver form in all years where the exemption is waived without out, you will be outside looking in, and with no legal remedy. So, it is time to start to become intimately familiar with IRS form 8332.
You can also try filing an appeal in tax court, but chances are, you will lose the battle, given recent case law that has upheld the federal requirement. You can file a contempt motion against the custodial parent in divorce court, but state court can’t override federal law, and the custodial parent is not in contempt of signing the IRS waiver form 8332, unless it specifically states so in the court papers. The IRS cannot allow both parents to claim, so guess who is on the losing end? The non- custodial parent, relying on their divorce decree or court papers, thinking they are entitled to claim the child in alternate years, also takes the tax dependency exemption however, not realizing they also need IRS form 8332, they get a letter of disallowance from the IRS, and of course cannot produce it, since it was inadvertently left out of their court papers, not realizing it was a necessary ingredient to claim the exemption. Here is the typical scenario in a particular tax year, the custodial parent continues the take the tax exemption. Without it, the IRS can and will disallow the deduction. The custodial parent must also be required to sign an annual IRS written waiver, Form 8332, each year where the exemption is going to be claimed by the non custodial parent. It is not enough just to be awarded the right to claim the dependency exemption.
#IRSS FOR 8332 PRO#
Here is where pro se litigants representing themselves in a divorce action or lawyers who dabble in divorce cases make a huge mistake. That seems simple enough, but that is only half the piece of the puzzle. However, the exemption can be waived either by the custodial parent agreeing to the waiver or by the court ordering it.
Under Federal law, the custodial parent is automatically entitled to claim the child as a tax dependency exemption.
A frequently asked question is which parent in a divorce can claim the tax dependency exemption for the minor child?
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