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My 2016 tax return was denied electronially by the IRS. The

Hi, JA: Hi. How can we...
Hi,
JA: Hi. How can we help?
Customer: My 2016 tax return was denied electronially by the IRS. The social security number for the child I listed as a dependant had alredy been used by another party. I was instructed to send in a paper return and wait for notification.
JA: What state are you in? It matters because laws vary by location.
Customer: Illinois, the IRS simply said to supply the form 8332 and I'd be fine. The deduction was to be rotated and if the other party hadn't used the deduction, there would be no problem..... If I request the 8332 and it's denied. What is my recourse?
JA: Has anything been filed or reported?
Customer: Yes, I filed manually and the just asked for the form 8332
JA: Anything else you want the lawyer to know before I connect you?
Customer: no
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Answered in 2 minutes by:
6/23/2017
Mark Taylor
Mark Taylor, Certified Public Accountant (CPA)
Category: Tax
Satisfied Customers: 2,338
Experience: Certified Public Accountant
Verified

Hi, my name is Mark. I will be happy to help you with your questions. Form 8332 is a release of claim of child exemption by custodial parent. Are you the custodial parent of the child?

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Customer reply replied 5 months ago
I understand what the form is..The MSA (marriage separation agreement) has the child deduction rotated every other year, 2016 as to be my year to use. I filed electronically and it was denied because the SS# ***** already used. I was advised to mail in the return and wait. They have asked for the 8332 form. MY QUESTION is , if my request is denied, what is my legal recourse at that point???

The IRS would defer to who is the custodial parent of the child. The IRS would not base their decision on the MSA. Unfortunately you would need to go to court to have the MSA agreement enforced. You could also see if your ex-spouse can amend their return.

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Customer reply replied 5 months ago
the answer is.."go to court to have the MSA enforced" are you an attorney?
Customer reply replied 5 months ago
I'm asking if my request to have the 8332 form signed and returned to amend my return is denied, what is my legal recourse. I'm paying $40 for that???
Customer reply replied 5 months ago
34;JA: Anything else you want the lawyer to know before I connect you?" I'm trying to legal advice.

It is court order that is being violated so yes you would need to go to court to have it enforced. If you can have your ex-spouse sign form 8332 giving you permission to claim the child you would not need to go to court. Your former spouse could sign off for future years.

Right now the situation is that the custodial parent has claimed the exemption. If the IRS eyes this is acceptable unless the custodial parent provides the former spouse a signed form 8332.

I am a CPA and I have dealt with this situation many time over the past 20 years. I am going to opt out. Maybe another person can explain the situation differently.

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Customer reply replied 5 months ago
You explained what I already know, we are on the same page. I don't need someone to "explain" it to me. I asked for an attorney not a CPA...My question again and I'll explain it better to Just Ask, ... As I request the form and anticipate resistance, I'm asking for what specifically is available in the process, is it enforceable?...ETC... My divorce attorney is $700 hr and the others I've employed are similar...it saves money to find out ANYTHING before hand...I'm looking for help..and my time is getting wasted and I feel insulted ..
Customer reply replied 5 months ago
If you can't add more to the topic than this free article from forbes...just say so and I'll move on... https://www.forbes.com/sites/peterjreilly/2014/04/13/non-custodial-parent-should-not-claim-dependency-exemption-without-proper-form/#491419ca17ca
Lane
Lane, JD, CFP, MBA, CRPS
Category: Tax
Satisfied Customers: 12,885
Experience: Law Degree, specialization in Tax Law and Corporate Law, CFP and MBA, Providing Financial & Tax advice since 1986
Verified

Hi. My name's Lane. I am a different expert. Mark has opted out.

...

I hold a law degree (J.D.), with concentration in Tax Law, Estate law & Corporate law, an MBA in finance, a BBA, and CFP & CRPS (Chartered Retirement Plans Specialist) designations, as well - I’ve been providing financial, Social Security/Medicare, estate, corporate, non-profit, and tax advice on three continents since 1986.

Bear with me just a moment, while I read through the question, and I’ll provide my initial response and then we can go from there if you have further questions on this

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Customer reply replied 5 months ago
thank you

The MSA is state law. Title 26 of the US code (colloquially called the Internal Revenue Code) is federal law and supersedes state law.

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Going to court won't help here.

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Regardless of what any state court judge says, IRS will require that the tax code's definition of custodial parent be used to determine the custodial parent.

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The test that the IRS uses to determine the custodial parent is where the child lived for more than 1/2 (or greater part) of the year. The IRS will go so far as to require counting the nights spend in each household - that person is the custodial parent for tax purposes (if exactly equal and more than 183 days - The custodial parent is the parent with the highest AGI, if less than 183 days then neither parent has custody),

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See Custodial parent and noncustodial parent under the residency test in Pub 17

https://www.irs.gov/publications/p17/ch03.html - en_US_2015_publink1000170891)

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The reason that they are asking for the 8332 is procedural. If you can provide the signed form 8332 you will be given the EITC regardless (you're either the custodial parent or the custodial parent has given the right away).

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However, (sorry, I hope you'll rate once we're done based on accuracy not good news / bad news) if you are NOT the custodial parent under the federal definition, you will not get the EITC without the 8332.

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All the system can do is kick back the form when someone else takes the dependency exemption (which allows for the EITC) first.

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Where you are now, is in the proof stage.

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If you get the 8332 you win. If you don't get the 8332 but can show that you are custodial parent under the FEDERAL definition you also win.

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James Daloisio
James Daloisio, Tax Attorney
Category: Tax
Satisfied Customers: 134
Experience: 24 years of continuing education and experience.
Verified

Hello, my name is ***** ***** I'm answering this question only because I've had clients with this same problem over the years here in California. The short answer to your problem is this: Your spouse violated the agreement. To make it right you should go back to the state court, file an order to show cause or similar pleading as to why she should not be held in contempt. You are seeking this remedy: the court will order your spouse to abide by the original agreement by filing an amended tax return that does not claim the dependent child that you were entitled claim. Filing a form 8332 would have the same effect but your ex-spouse's tax return would still have to be recalculated and she'd probably owe a bit of money. Those are your options.

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Customer reply replied 5 months ago
OK.. I understand everything you are saying, here is the question.
I have a few days to respond to the IRS and either provide the 8332 or amend without the dependency deduction. I will request the 8332 from the custodial parent via email. Should the request be denied( I expect this) , I want the response to be used to enforce the MSA...
How do I word the request to ensure it has maximum effectiveness? Do I extend my return to allow time for this process, if my request for the 8332 is denied, if I amend my return and not extend, does it alter my case or recourse at all? If I enforce the MSA, what am I pursuing, the increase in my tax return, court costs..what else??.... THANK YOU

This is your original expert here. The answer above is incomplete. You must look at this as two separate issues

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Although you should certainly file an order to show cause, asking for the court to order your ex to comply and amend, the information that's needed here ... and still hasn't been provided, I don't believe, is "WHO is the custodial parent?" (under the federal definition above, irrespective of any state court MSA)

...

Now that you're in the proof stage here, it's the answer to THAT question (who IRS would say the custodial parent is) that will drive the remainder of the answer here.

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If you are the FEDERAL custodial parent, you have no need to amend, your EX won't be able to prove the residency test.

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If you ARE the FEDERAL custodial parent, you SHOULD amend.

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An extension is allowable only if you filed for an extension before April 18th. But again, isn't needed, as the answer to how you should file is based simply on the residency test.

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In terms of the pleading; if you are custodial under federal law, then you don't need to ask the court to make the ex file an amended return. You will have no additional tax cost, and the Ex's EITC and associated refund will be disallowed (or will owe additional taxes depending the return overall).

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If you are not the custodial parent then you should certainly ask the court to force compliance via an amended return. And with respect to the tax owed, once that amended return is filed, you will owe nothing, and your return will be accepted as filed. Another option is to ask for the tax cost plus penalties. But you cannot ask for both.

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Questions?

...

Let me know. I'll be here.

...

If not, then I'd appreciate a positive rating (otherwise I wont be compensated by JA for the work here).

...

But again, let me know if you need more.

...

Lane

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Customer reply replied 5 months ago
thank you..
I am not the custodial parent. Without the 8332, I can only amend my return.
The MSA awarded me the deduction every other year.
The IRS just addressed my tax return and gave me 20 days to provide the 8332 or amend my return. An extension is not an option. So , I am left to request the 8332 from the custodial parent and if received..the matter is closed.
If my request is denied, I should file an amended return for closure with the IRS and pursue the compliance of the MSA in court...? Is this correct, so far? If so...
Do you have a suggestion for the 8332 email request from the custodial parent?. Is there a preferred wording for optimum results? This has been my original question and am simply looking for how to request it in a way that it has teeth..the possibility of actually getting the 8332 or cementing compliance with the court?
You have been great...thank you

"If my request is denied, I should file an amended return for closure with the IRS and pursue the compliance of the MSA in court...? Is this correct, so far?"

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That's right.

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"Do you have a suggestion for the 8332 email request from the custodial parent?. Is there a preferred wording for optimum results? "

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Yes, something to the effect of..

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(with the words, "contempt of court" in the subject line ... or maybe less direct depending on personality)

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The MSA which you signed and was decreed by the court, provided that we alternate taking the dependency exemption and associated tax benefits for _______.

I filed this way, expecting that you would honor your agreement, and your responsibility to the court, only to find that the IRS system automatically rejected my return because you, against state law, had already filed.

IRS has a form for when the court has provided that ex-spouses take the dependency in alternating years. Form 8332, (attached). Form 8332

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Please sign (Note that it's set up so that we can add all future alternating years, so as not to be bothered with this again) and return to me,

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[You might want to consider attaching a pre-paid FedEx label (you can have them printed to a pdf file on their site)]

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I'd appreciate your not forcing me to go to the court and file the pleading to make you amend your return. I've spoken with an attorney and this is apparently common, and the court will hold those not complying in contempt.

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AND there can be additional penalties, fines, and if you don't comply, additional money damages as well.

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i'm offering this as the simply way too get this done and have you be compliant with the agreement and state law.

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I WILL go forward with the motion to show cause pleading if you do not return the signed form to me.

Lane
Lane, JD, CFP, MBA, CRPS
Category: Tax
Satisfied Customers: 12,885
Experience: Law Degree, specialization in Tax Law and Corporate Law, CFP and MBA, Providing Financial & Tax advice since 1986
Verified
Lane and 87 other Tax Specialists are ready to help you
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Customer reply replied 5 months ago
Slam dunk Lane...THANK YOU THANK YOU THANK YOU.. I will award the highest review..
Thank you
Customer reply replied 5 months ago
34;I'd appreciate your not forcing me to go to the court and file the pleading to make you amend your return. I've spoken with an attorney and this is apparently common, and the court will hold those not complying in contempt."I wouldn't be asking the court for her to amend her return as this would take longer than the 20 days allotted by the IRS to correct..I'd be going to court to have "the MSA upheld and receive damages"?...

All IRS penalties fall under late or non filing penalty (not an issue here) or under or non payment penalty.

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Both of these penalties have as their basis, tax due.

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Once she amends (assuming that happens) you wouldn't owe anything, so the basis for any penalty would go away; y x 0 = 0

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If you went ahead and amended now, upon her amending, you'd later get a refund of what you paid with the amended return.

...

But yes, you certainly CAN take the route of amending, paying, and asking for the additional tax cost plus other damages such as time lost, legal fees, etc.

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Lane
Lane
Lane, JD, CFP, MBA, CRPS
Category: Tax
Satisfied Customers: 12,885
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Experience: Law Degree, specialization in Tax Law and Corporate Law, CFP and MBA, Providing Financial & Tax advice since 1986

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