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Wallstreet Esq.
Wallstreet Esq., Tax Attorney
Category: Tax
Satisfied Customers: 16120
Experience:  10 years experience
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My daughter filed taxes today and in her custody agreement

Resolved Question:

My daughter filed taxes today and in her custody agreement the father of her children could claim one of the kids on his taxes every year. The tax person who did her taxes today told her she could claim both kids on her taxes because the kids live with her 80% of the time, no matter what the court order stated. I would like to know if he gave her bad advise or not. The father of the kids doesn't usually file a tax return every year and makes a lot of money. He claims 10 dependents also, and only has himself and by court order one of the kids to claim. We really need some advice on this. Thank you!
Submitted: 3 years ago.
Category: Tax
Expert:  Wallstreet Esq. replied 3 years ago.

Wallstreet Esq. :

Hello I am a licensed attorney here to help you with your question, please review my response and do not hesitate to ask for clarification.

Customer :

Could I get clarification please.

Wallstreet Esq. :

Yes, when was the divorce final?

Wallstreet Esq. :

What year?

Customer :

they were never married

Customer :

are you still available

Wallstreet Esq. :

If they were never married, under the IRS regulations,

Wallstreet Esq. :

without a completed form 8332, the mother or custodial parents receives the deduction.

Wallstreet Esq. :

The Court order does not superseded the IRS form requirements.

Customer :

is this also true in Arizona, the place of the court order

Wallstreet Esq. :

Yes, this is Federal Tax Law, and many individuals are confused since they claim the Court order is valid, but the IRS requires the form 8332 to be signed by both parents in order for the custodial parent to give up their deduction.

Wallstreet Esq. :

He would have to go to Court to enforce the deduction, and the Court could make her sign the IRS form, but that is it.

Wallstreet Esq. :

In Cramer v. Commissioner, TC Summary Opinion 2003-2, the court ruled that since Cramer had had custody for the greater part of the year, she was the custodial parent and thus entitled to claim the exemptions unless she expressly released them to Dundra.


Dundra contended his ex-wife's signature on the divorce decree attached to his return satisfied the requirement of a statement conforming to the substance of form 8332. The court disagreed, stating that Cramer's signature on a divorce decree dated in 1988 did not indicate her intent to release exemptions in 1998. The court also noted the attachment did not conform to the substance of form 8332 as it had not specified the children's names, the year the exemptions were released or Dundra's Social Security number.


Dundra said he had not attached form 8332 because he did not think Cramer would sign it. She testified she would not have signed the form because she had no intention of releasing the dependency exemptions. Dundra also claimed he had relied on an IRS publication that said form 8332 was unnecessary and that a copy of the divorce decree granting him the dependency exemptions was sufficient.


The court replied that IRS publications are not authoritative and taxpayers rely on such publications at their own peril. The court disallowed Dundra's exemptions because he had not attached form 8332 or a statement conforming to its substance to his return and allowed Cramer the exemptions.

Customer :

Does this work also if they have joint custody and the girls live in South Dakota with their Mom, most of the year except 6 weeks in the summer?

Wallstreet Esq. :

Yes, she clearly has supported them for most of the year and is entitled to consider them as dependants.

Wallstreet Esq. :

If you have any further questions please do not hesitate to ask, if not please press the accept button so we can receive credit. Thank you.

Wallstreet Esq., Tax Attorney
Category: Tax
Satisfied Customers: 16120
Experience: 10 years experience
Wallstreet Esq. and 9 other Tax Specialists are ready to help you

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