My ex husband and I signed our original divorce decree in 2001. We agreed that he would claim our daughter and I would claim our son on our yearly taxes.

In 2009, we entered a stipulated agreement that made my ex the sole legal custodian of both children (the kids' choice).

I filed taxes for 2008 and claimed our son, as our order specified. At the end of 2009, I received a letter from the IRS stating that my ex had also claimed our son.

After contacting the IRS, I was told that the parent who the child resided with at least 6 months and one day was entitled to the exemption.

However, I am now reading the Form 1040 tax instructions for line 6c which indicates I should still be eligible to claim our son, so long as I attach the cover page to our decree, relevant pages relating to who claims the child and the signature page. Only decrees entered after 2008 would require the custodial parent to sign Form 8332. I am also paying more than half of my son's support.

Am I understanding this correctly?

Thanks!

If your son was there more than half of 2008, then your ex claims him. Time spent living at a home is the IRS definition of 'custodial parent.' Your ex is the one who had to give you back the exemption for 2008, in a written statement or a 8332. The parts of the IRS code about 'support test for children of divorced parents' and 'post 1984 and pre 2009 divorce decree' may seem confusing because they use the IRS definition of custodial and non custodial parent.

Thanks, Joy. I'm not sure I understand. When I do the test for residency, I am directed to the exception for separated/divorced parents. My tax software also indicates that as the non-custodial parent, child living with me <6 months, I need to attach the decree or form 8332.

The way I read this is: if my ex wants to claim our son, he would need a statement from me or form 8332. Since we have a stipulated decree that states we each claim one child, it seems as though I should still be eligible; regardless of support or living arrangements. The child must live with one or both parents for at least 6 months out of the year.

You're saying this is not the case?

'.. as the non-custodial parent, child living with me <6 months, I need to attach the decree or form 8332.'
HE has to give YOU a statement or a 8332, to enable you to claim him, when your son didn't live with you 6 mo/1+ day. The decree doesn't apply, because it has your son living with you.

Living arrangements trump all, unless the parent gives up the claim in writing.

I am not a tax expert but believe that I am interpreting the code correctly. If you call the IRS, I'd suggest that you make it sound as confusing as it is, so that you move up the ranks of agents, who get increasingly knowledgeable as you are referred. Otherwise the first ones will just quote what you have already read.

Thanks again. I mean no offense when I say that I'm sure you can understand why I hope you're wrong :)

None taken. I gather your ex wants it both ways.

Actually - he hasn't even had a job for the past 6.5 years. There's really not much benefit for him to claim both children on his taxes, other than spite. Just claiming one child wipes away any tax liability for him.

It's a shame I'm paying tax on the child support he receives and there's no tax benefit to anyone. Technically, he's not spending a dime of his own money to support the kids. It's all welfare, child support or help from his parents.

I get what you're saying about custodial parent and the decree, but the rule IS confusing in that it says if the decree details when the non-custodial parent may claim the child (in our case - it states I may claim our son from 2001 and thereafter), that the decree can serve in lieu of the 8332. I'm using my own words here as you can see... and not giving up on this attempt. :)

Where I may lose out is if they put this test under 'qualifying relative' as opposed to 'qualifying child.' The qualifying child test will trump the qualifying relative.

Ugh... this is just not fair! :(

I would say definitely qualifying child, not relative.
Notice that the IRS under the Support definition of Qualifying Child doesn't get into which parent provides support.
Under the 'post 1984 pre 2009' section:
You as the non custodial parent in 2008 must provide the first 3 items and the 3 bullets. Note number 2! The papers must say that the custodial parent 'will not claim the child as a dependent FOR THE YEAR.' You don't have anything saying that for 2008.

A little further, under 'children of divorced or separated parents.. ' 4a states that the 'custodial parent signs a written declaration... that he or she will not claim the child as a dependent FOR THE YEAR.'

If he had provided such a statement, you could have applied 'applying this special rule to divorced or separated parents.. ' also a little further on.

I suppose you could argue that your divorce decree covers every year. But I think the IRS is making it pretty clear that they want a statement for each year.

It makes no sense that he would claim your son when he doesn't need to. Unless he has income you don't know about...

When you did the revision did you include new wording that allowed you to claim the one child on income tax, since custody changed at that point, it also changed some of the other agreements

No - no modifications were made to that section. I was able to prevail in court last year for reimbursement of medical expenses on the same grounds. Stipulated agreement... and he reaffirmed. The only thing that was addressed in the modification was a loosely written parenting time agreement (I know now what stating minimum time means) and child support (his true goal). Nothing mentioned about taxes.

I know this is an ambiguous rule... My feeling is that I can try. The worst that will happen is another audit. And I'm not askeered! :) I have nothing to hide. But if my argument prevails, it could mean I can claim on 2009 and 2010 too

He refuses to give you a statement or 8332 for 2008 or any years since? Not much time left for an amended return.

Very interested to see how this pans out.

Between 2001 and 2008, he would never provide me with the form but he also didn't claim our son.

It occurred to me just this morning that a refund is of no benefit to him at all, since he was discharged of bankruptcy in 2009. Any refund he might get would go straight to the BK courts.

I know that time is running out to file the revised claim. I have that prepared if it must be done. I'm just stubborn and am hanging onto that original decree, which states I am to claim our son!

It's a long shot... but I need to try. I've referred to that document many times to compel my ex to do something (or pay) when he "felt" he shouldn't.


Will post an update when I find out

Yippee! The IRS representative agreed that our decree was a "substantially similar statement" so now I need to send that in to prove I was elibible to claim our son on my taxes for 2008. Going forward, I'll need to attach those certain pages from the decree in lieu of Form 8332. SHE was very nice... the next guy was a dweeb/gerbil :| They've told me not to send in any unsolicited information. WAIT until they request the 'substantially similar statement'. So for now, I'm not going to revise my return. Makes me nervous but that's what they said. I'm betting I'll get another letter though...