Who gets the tax deduction, and what happens if terms violated?

[Chardog]

What is the name of your state? California

I have a custom judgement:

I am the petitioner, and here it goes:

18. That petitioner shall exercise the federal and state dependency tax deductions with reference to said children as long as petitioner is providing more than fifty percent, of support of said children. Should Respondent begin earning a provable wage, and begin providing fifty percent, or more of the support of said children, the federal and state dependency tax deductions shall be split between the parents; one parent taking the state deduction one year while the other parent takes the federal deduction the same year, and reversing the following year.

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I pay my son's FULL child care expenses, and he also lives with me for more than 70% of the time.

The problem is that BM went ahead and filed her taxes a few weeks ago, taking the deduction. What should, could I do?

 

[TigerD]

What is the name of your state? California

I have a custom judgement:

I am the petitioner, and here it goes:

18. That petitioner shall exercise the federal and state dependency tax deductions with reference to said children as long as petitioner is providing more than fifty percent, of support of said children. Should Respondent begin earning a provable wage, and begin providing fifty percent, or more of the support of said children, the federal and state dependency tax deductions shall be split between the parents; one parent taking the state deduction one year while the other parent takes the federal deduction the same year, and reversing the following year.

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I pay my son's FULL child care expenses, and he also lives with me for more than 70% of the time.

The problem is that BM went ahead and filed her taxes a few weeks ago, taking the deduction. What should, could I do?

I would say take the deduction and expect to be audited.

 

[GrowUp!]

What is the name of your state? California

I have a custom judgement:

I am the petitioner, and here it goes:

18. That petitioner shall exercise the federal and state dependency tax deductions with reference to said children as long as petitioner is providing more than fifty percent, of support of said children. Should Respondent begin earning a provable wage, and begin providing fifty percent, or more of the support of said children, the federal and state dependency tax deductions shall be split between the parents; one parent taking the state deduction one year while the other parent takes the federal deduction the same year, and reversing the following year.

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I pay my son's FULL child care expenses, and he also lives with me for more than 70% of the time.

The problem is that BM went ahead and filed her taxes a few weeks ago, taking the deduction. What should, could I do?

I would agree with DC and file your taxes and claim the deduction. BOTH you and the ex will be audited. Are you providing more than 50% of the support, per a CS order? I would suppose that if the Respondent started providing more than 50%, then the support order would've had to be modified to reflect that.

LdiJ is the tax prep person on here, so she might have additional info on this (and whether the IRS would even follow the court/admin. order), so stand by for her advice on this, if she posts.

You also have the option of filing a show cause for contempt against her in court as well, since it is a violation of the court order.

 

[Ohiogal]

The IRS will not follow the state court order. And I am pretty sure that based on what LDIJ has said in the past that the parent with custody more than 50% of the time (the CP) would have the legal right per the IRS to claim the children. As for splitting the state and federal deductions -- I have never heard of such a crazy thing.

 

[Just Blue]

Why are you posting here? You said on another thread that we were not helpful...



Today, 12:57 AM
Chardog
Junior Member Join Date: Mar 2006
Posts: 29

try www.deltabravo.net. This site is not very useful for men. I first came to this site and was flamed on for my lack of knowledge. Now I have joint custody, and the bm is the one making visitations. You're in a bad situation, and I cannot help much, but refer you to the great group of guys at sparc. Good luck with your journey, and consider a vasectomy

 

[haiku]

The IRS will not follow the state court order. And I am pretty sure that based on what LDIJ has said in the past that the parent with custody more than 50% of the time (the CP) would have the legal right per the IRS to claim the children. As for splitting the state and federal deductions -- I have never heard of such a crazy thing.

The IRS WILL honor the court order as long as there is proper documentation attached. See www.irs.gov

And I too thought that the federal and state taxes had to "match".

 

[LdiJ]

Federal and state taxes have to match. They cannot be split so that alone makes the order invalid.

It is incorrect that the IRS will honor court orders. The IRS will only honor court orders that are valid substitutes for form 8332. Any order that contains any conditional language (which this order does, big time) is NOT a valid substitute for form 8332. In addition, for a court order to be a valid substitute for form 8332, it also must state the specific years that the non-custodial parent gets the exemption (such as even/odd), which this order does not. Therefore it fails two of the three tests to be a valid substitute for a form 8332.

Therefore, if the children live with the OP 70% of the time, then the OP gets the exemptions as far as the IRS is concerned.

The OP's option as far as the IRS is concerned is to file a paper return. He will receive his refund and the IRS will investigate the matter later on down the road.

 

[haiku]

http://www.irs.gov/pub/irs-pdf/p4449.pdf

 

[LdiJ]

http://www.irs.gov/pub/irs-pdf/p4449.pdf

That link does not state that the IRS will honor court orders. Its not a bad link, but its basically just a bullet point.

The three rules are that the order must:

1. State the years that the NCP is allowed to take the exemption
2. Be unconditional
3. State that the CP will not be taking the exemption those years.

In addition, it needs to be an agreed order, containing the signature of the CP. (not the CP per the order, but the CP per the physical residence test)

 

[haiku]

That link does not state that the IRS will honor court orders. Its not a bad link, but its basically just a bullet point.

The three rules are that the order must:

1. State the years that the NCP is allowed to take the exemption
2. Be unconditional
3. State that the CP will not be taking the exemption those years.

In addition, it needs to be an agreed order, containing the signature of the CP. (not the CP per the order, but the CP per the physical residence test)

alright...then you find THE LINK from the IRS with this info to help the OP. A link would be very helpful, and informative.

 

[GrowUp!]

And the back and forth is exactly what I thought would happen and even MORE reason why the OP should simply file a motion for show cause with the court, since it's a violation of the court order.

OP...I would also suggest sending a letter, certified with return receipt, reminding your ex of the language in the order and the percentage of support you were ordered to pay, therefore, allowing you to claim the deduction. State that you understand she has filed her 2006 tax returns claiming a deduction she is not entitled to and request that she amend her return within 10 calendar days AND to give you proof of the amended return AND it has been filed AND accepted by the IRS (if it's done electronically, all of this can happen within a day -- two at the max) and if she does not, then you will file a show cause for contempt against her in court. Give her 10 calendar days to respond.

 

[LdiJ]

alright...then you find THE LINK from the IRS with this info to help the OP. A link would be very helpful, and informative.

A link isn't necessary. This is what I do for a living and I have given the OP the necessary information...and it doesn't vary by state.

However, the 1040 instructions, and the instructions for form 8332 will also spell out the answers in detail and are available to download at irs.gov.

 

[haiku]

A link isn't necessary. This is what I do for a living and I have given the OP the necessary information...and it doesn't vary by state.

However, the 1040 instructions, and the instructions for form 8332 will also spell out the answers in detail and are available to download at irs.gov.

Why yes I know! And I am the Queen of England**************

I too am well aware of the IRS guidelines. And I am not an accountant.

no matter who you are and what you do, this is the internet, and links are nice to prove your points.

Which is why I provided one, in the hopes that the OP would catch on and check it out himself.

 

[bononos again]

To my surprise this year, I found a few on-line tax prep. sites that ask if there is a CO regarding who claims.
I was always the impression it was based on living more than 6 months with the parent.
I guess with so many courts issuing orders of who claims, then the standard guidelines of the IRS are getting harder to follow to avoid an audit.

 

[Chardog]

And the back and forth is exactly what I thought would happen and even MORE reason why the OP should simply file a motion for show cause with the court, since it's a violation of the court order.

OP...I would also suggest sending a letter, certified with return receipt, reminding your ex of the language in the order and the percentage of support you were ordered to pay, therefore, allowing you to claim the deduction. State that you understand she has filed her 2006 tax returns claiming a deduction she is not entitled to and request that she amend her return within 10 calendar days AND to give you proof of the amended return AND it has been filed AND accepted by the IRS (if it's done electronically, all of this can happen within a day -- two at the max) and if she does not, then you will file a show cause for contempt against her in court. Give her 10 calendar days to respond.

I like this method! I'll give it a go.

I'm looking over the link haiku. Ldij seems to be correct with the info provided, but it certainly isnt helpful to me. I'm on the phone with irs, hopefully they can straighten out things.

Just got off the line with irs, and they said since my child stays with me more than half the time, IRS considers me the cp regardless of the fact that I am or not. I will follow growup's advice, since I like to take things into my own hands. The IRS was very thorough explaining, and Ldij is right for the most part.

On paper, I'm not defined as the cp, but to the IRS, I am defined as the cp since I can prove that my son lives with me more than half the time. The 8332 is unnecessary.