modification

[Ladyback1]

Yet you admit he is current in his monthly support payments. .

The only reason he is "current" at this time, is because the state took some or all of his state income tax.
That has been the case every year. He consistently is in arrears until tax time, state takes part/all of his return. He gets caught up for a couple of months, and then the arrears start adding up. I understand that CSED can't "take" everything he earns for child support. He is typically in arrears for 10 mo. out of the year.

I have no clue if that makes a difference in anyone's opinion.

And, I had not considered that info important until it was brought up by responses.

 

[LdiJ]

The only reason he is "current" at this time, is because the state took some or all of his state income tax.
That has been the case every year. He consistently is in arrears until tax time, state takes part/all of his return. He gets caught up for a couple of months, and then the arrears start adding up. I understand that CSED can't "take" everything he earns for child support. He is typically in arrears for 10 mo. out of the year.

I have no clue if that makes a difference in anyone's opinion.

And, I had not considered that info important until it was brought up by responses.

It only makes a difference if your court orders state that he has to be current on child support in order to take the exemption.

 

[latigo]

Yep, you are absolutely correct as far as the IRS is concerned. What you are ignoring however is what the state court is likely to do to mom when dad files for contempt for mom claiming the exemption for both children. I have actually testified in court on behalf of two different custodial parents who did exactly as you suggested, and both of them got their butts handed to them in a sling by the state court...despite the fact that I demonstrated unequivacably what you outlined. One custodial parent was ordered to amend their returns to remove the child and forced to sign form 8332 in court for all future years (and yes, if you will look at form 8332 you will see that it can be signed for either just one year, or multiple years) and the other was ordered to pay the non-custodial parent the amount equivalent to what the non-custodial parent would have received had they been able to claim the exemption.

I also listened to the judge say in both cases, in open court, that it was the state's policy to encourage the parent to pay their child support by giving them the exemption. In that particular state (Indiana) the guidelines do state that the ncp is not entitled to the exemption if they are not current with child support.

So, following your advise would likely end with the OP in a world of hurt since it does appear that the ncp IS paying their child support.

The IRS would actually like to completely do away with form 8332 which would force the states to adjust their child support guidelines to take the tax exemptions into consideration if they still feel that is appropriate. However so far they do not have the support of Congress to do so.

In that particular state (Indiana) the guidelines do state that the ncp is not entitled to the exemption if they are not current with child support.

That is an out right prevarication!

The Indiana Child Support Guidelines DO NOT state that the “non-custodial parent is not entitled to a dependency exemption if not current with child support”.

Why? BECAUSE FEDERAL LAW PREEMPTS STATE LAW in this respect. What the “Commentary” to the Indiana guidelines state, in acknowledging that the state cannot override federal law, is:

“That under current (federal) law the court cannot award an exemption to a parent, but the court may order the (custodial) a parent to release or sign over the exemption for on or more of the children pursuant to Internal Revenue Code § 152(e). “

Then the commentary continues by suggesting that judges and practitioners may wish to consider drawing the order requiring the custodial parent to submit Form 8332 on an annual basis “AS AN INCENTIVE” to promote compliance with the child support order. But inasmuch as IRS prohibits state courts from ordering the exemption, they certainly cannot place conditions on it! Nor can a litigant be held in contempt for violating an order the state court is not authorized to issue!

(I'm sure you would deem it a waste of your time and likely disillusioning, but you might try first reading those guidelines and applicable federal law before running your mouthing with misinformation and misinterpretation.)
___________________

Next, regarding your “chicken little” false alarm about the mother being held in contempt of court for claiming both children as dependency exemptions. It ain’t going to happen, buster!

And the reason it ain’t going to happen is because the individual states “DO NOT HAVE THE AUTHORITY TO AUTHORIZE THE CLAIM OF AN EXEMPTION”. See: 40 T.C. No. 10 (5/16/13) and IRS Reg. Sec. 1.152-4(e)(1)(ii) :

And neither you nor some judge you claim to have [/i]"overheard in open court”[/I] is going to make it so!

The only way the mother could be found in contempt by of the Montana state court is if the decree directed her as the custodial parent to waive her right to claim the exemption by submitting IRS Form 8332 and she WILLFULLY failed to do so. And to date we haven’t been apprized of such a provision in the decree.

Lastly, this business of yours about IRS wishing to do away with Form 8332 is unalloyed bunk!

 

[LdiJ]

That is an out right prevarication!

The Indiana Child Support Guidelines DO NOT state that the “non-custodial parent is not entitled to a dependency exemption if not current with child support”.

Why? BECAUSE FEDERAL LAW PREEMPTS STATE LAW in this respect. What the “Commentary” to the Indiana guidelines state, in acknowledging that the state cannot override federal law, is:

“That under current (federal) law the court cannot award an exemption to a parent, but the court may order the (custodial) a parent to release or sign over the exemption for on or more of the children pursuant to Internal Revenue Code § 152(e). “

Then the commentary continues by suggesting that judges and practitioners may wish to consider drawing the order requiring the custodial parent to submit Form 8332 on an annual basis “AS AN INCENTIVE” to promote compliance with the child support order. But inasmuch as IRS prohibits state courts from ordering the exemption, they certainly cannot place conditions on it! Nor can a litigant be held in contempt for violating an order the state court is not authorized to issue!

(I'm sure you would deem it a waste of your time and likely disillusioning, but you might try first reading those guidelines and applicable federal law before running your mouthing with misinformation and misinterpretation.)
___________________

Next, regarding your “chicken little” false alarm about the mother being held in contempt of court for claiming both children as dependency exemptions. It ain’t going to happen, buster!

And the reason it ain’t going to happen is because the individual states “DO NOT HAVE THE AUTHORITY TO AUTHORIZE THE CLAIM OF AN EXEMPTION”. See: 40 T.C. No. 10 (5/16/13) and IRS Reg. Sec. 1.152-4(e)(1)(ii) :

And neither you nor some judge you claim to have [/i]"overheard in open court”[/I] is going to make it so!

The only way the mother could be found in contempt by of the Montana state court is if the decree directed her as the custodial parent to waive her right to claim the exemption by submitting IRS Form 8332 and she WILLFULLY failed to do so. And to date we haven’t been apprized of such a provision in the decree.

Lastly, this business of yours about IRS wishing to do away with Form 8332 is unalloyed bunk!

Latigo...this is an issue that I have addressed, at very great length on these forums.

There is a flat out contradiction between federal law in terms of tax exemptions, and state court judge's rulings regarding tax exemptions.

Prior to about 2004ish, the IRS pretty much accepted state court orders as overriding federal tax law. Around 2004ish the IRS tightened that requirement and stated that court orders would only be accepted if they were unconditional (ie, no requirement that someone be on time with child support in order to claim the exemption or other conditions). For 2009 foward the IRS changed it to accepting no state court orders at all, but only accepting a signed form 8332, or a separate statement, not part of a court order, that contains the same information.

That has not stopped state court judges from ordering that parents share or alternate tax exemptions for children. They still do so, and each state varies a little bit in whether or not they put conditions into the orders. You won't find a child support order in Indiana that does not contain specific language stating that the non-custodial parent must be current on child support in order to claim the exemption. Its standard verbiage that is placed in all child support orders. I suggested that the OP check to make sure that that wasn't the prevailing norm in her state. You will also not find a judge or attorney in Indiana that won't tell you that giving them ncp shared or alternated tax exemptions is not done as an added incentive for them to pay their child support. Again I suggested that the OP find out if that was the prevailing norm in her state.

When there is a contradiction between federal law, and state law, (with some fairly rare exceptions) federal law trumps state law. However, due to the fact that form 8332 exists, that still allows state judges to make rulings on sharing or alternating tax exemptions. It also allows a judge to resolve a contempt hearing by ordering the offending parent to retroactively sign a form 8332.

You can rant, rave, throw a hissy fit, insult me and do whatever else you like. It doesn't change the reality of the situation and it doesn't change the fact that anyone following your advice would be facing seriously punitive financial measures from a state court judge. Your advice is irresponsible.