Jean wrote:

- quote -

There's not enough information to answer that one. First,
under state law does such a person have "custody" any
longer? If not, then Section 152(e) is no longer relevant
and the decree, even if it said that one party gets the
exemption after age 18, is simply irrelevant. A state court
cannot write federal law and if there's no custody then we
have to look to the standard rules--which look to who
provided over 1/2 of the support (if anyone).

My suspicion is that once the age of majority is reached,
there would not be custody--the adult child now has his/her
own legal right to go where he/she wishes, unlike the minor.

Second, if that is considered custody under state law
(highly unlikely I think, but then again I'm not an
attorney), then the real question would be one to be settled
by the state court--would the court order the individual, if
he/she is the custodial parent, to sign the release? If
yes, then it works. If no, then it doesn't <grin> .

--
Ed Zollars, CPA
Phoenix, Arizona

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what if decree states that ex may claim 'minor' child? once
child turns 18 she is no longer a minor, so I am guessing he
can no longer claim her?

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Shirley.Caylor wrote:
- quote -

Be careful--as a number of recent Tax Court decisions have
pointed out, unless your divorce decree contains *ALL* of
the information required in the regulations (which is all
the information on the 8332, including identification
numbers), is signed by the other spouse and gives an
*UNCONDITIONAL* grant of the exemption (no language about
him getting the exemption so long as he is current on child
support payments or any other contingency), the Tax Court
will give the exemption to the custodial parent. See, for
example, the Miller case (114 TC 184), Cramer (TC Summary
2003-2), Neal (TC Memo 1999-97), and Loffer (TC Memo
2002-98).

This is a textbook case showing how you cannot rely on IRS
instructions and publications <grin> , because at least prior
to these cases the instructions and publications kind of
glossed over these details. But since the IRS figured out
they were going to get whipsawed by this one if they
followed the implication of the publications and
instructions (custodial spouse would get the exemption based
on the law), they have gone ahead and thrown out the
noncustodial parent's exemption claim.

If the IRS hadn't taken that position, a couple could
structure their situation so that the noncustodial parent
would attach a decree intentionally structured to appear to
fit within the instructions, but fail to meet the
regulations. Noncustodial parent gets the exemption based
on the instructions, and the custodial parent gets the
exemption based on the regulations.

Simple answer--go to state court and get an order forcing
the custodial parent to sign the 8332. If the custodial
spouse truly has no basis for refusing to sign, I suspect
you'd also have a good chance of getting legal expenses as
well.

--
Ed Zollars, CPA
Phoenix, Arizona

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"Venom" <venom25_1[at]hotmail.com> wrote:

- quote -

Check IRS Pub 501, pg 17 and it will answer most of your
questions. You can send certain pages of the dissolution of
marriage with your return if they include the information
required.

Hope this helps.

Shirley Caylor, EA
Caylor Income Tax & Accounting

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