askinrw[at]yahoo.com wrote:

[SNIP]
- quote -

IRS Pub 17 and IRS Pub 501 explain it very well. As others
have noted, neither taxpayer (separated, divorced or never
married) will hear from the IRS unless they both try to
claim an exemption for the same child, or both try to claim
some other tax benefit using the same child. I advise all
taxpayers who are the noncustodial parent to get the 8332
signed.

--
Alan
http://taxtopics.net

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askinrw[at]yahoo.com wrote:

- quote -

The IRS is completely disinterested in divorces and the
agreements made between divorced/separated parents. All
they care about is that divorced/separated parents do not
double up on dependents.

A prudent person would have hardcopies of 8332's to support
their dependency claims.

Yes, there have been cases where the IRS has disallowed
dependents because no party could prove they met the 50%
plus test, but that is an administrative fiat tactic used
against quarelling people who want the IRS to resolve their
disagreements.

Amicable divorces are rare, but they do happen. Hopefully
you will have one.

Dick

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aski...[at]yahoo.com wrote:
- quote -

Tax law is not about "winners and losers", only the facts.

And truly, if custody actually works out to 50/50, with
neither parent having ACTUAL (note the word, "Actual")
majority custody, then neither gets the exemption. Period.
No assumptions. Just the facts govern. No assumptions;
just the facts.

And don't think any judge would spend time in the pokey with
or instead of you. It's your responsibility to claim the
child IF you have actual majority of the time custody.

ChEAr$,
Harlan Lunsford, EA n LA

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The IRS will not care which of you claims the children, as
long as you both don't claim them. If you do, then you would
need an 8332 signed to prove you had the right to claim
them. In the event there isn't a signed 8332, then the
parent who had the children the most days would be declared
the custodial parent and would have the right to claim them.

So go ahead and file, claiming the children you have agreed
upon. Only if things get messed up and you both claim the
same child would you have to go through the trouble of
filing 8332.

As a professional tax preparer, I have filed dozens of
returns without an 8332 and never had a problem with it.

Dennis

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askinrw[at]yahoo.com posted:

- quote -

As a practical matter, the most significant danger is when
there is conflict between the [former] spouses. If, as you
say, all is agreed and your individual returns will not
result in any competition for claimed exemptions, the
likelihood is there would be no problem.

The answers you have been given have been strictly to the
letter of the law -- and reflect a general tightening of
standards in the past two years.

Informally, I would suggest you proceed with your cordial
agreement, and resist the urge to make it a perfect world.
<smile
Bill

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<askinrw[at]yahoo.com> wrote:

- quote -

For tax purposes the question is which parent had physical
custody of the child more than half the year. Temporary
absences ("Could you take them this weekend?") don't count.

<snip
- quote -

These rules we're talking about are for divorced or legally
separated parents. They don't apply to couples who are
married.

<snip
- quote -

As long as you don't both claim the same child there will be no processing
problems.

- quote -

There are five tax "benefits" of a qualifying child. For
two of them, the dependency exemption and child tax credit,
which travel together, you're free to split them as you
choose, year by year, with or without paperwork with the
previously-stated caveat about cooperation between you and
your ex.

The other three benefits are available only to the parent
who had physical custody of the child for more than half the
year. If neither parent had child care expenses and neither
is eligible for the Earned Income Credit, the custody issue
is moot.

That leaves us with Head of Household filing status. If you
both want to file as HofH each of you needs physical custody
of at least one child for more than half the year.

You haven't mentioned anything about the children's ages.
If you've got one away at school, there's an easy solution
since such absences don't count. You just make sure that
this particular child's "permanent" residence is documented
as the home of the parent who's going to claim that child.
(Mail, driver's license, etc.)

For children living together the books are closed on 2006.
The parent that had physical custody of a child more
days/hours/minutes is the only one who can claim HofH filing
status based on that child.

Going forward you have two choices. You can proceed as for
2006 or you can split them up.

--
Phil Marti
Clarksburg, MD

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"A.G. Kalman" <agkdisposable-...[at]yahoo.com> wrote:
- quote -

Ok....some slightly differing opinions here.

By way of explanation...I used the phrase "true" 50/50
custody because, as I stated, there is no naming of
custodial or non-custodial parent and the intent of the
agreement is that the children do in fact spend half the
time with me and half the time with her. To the extent that
is possible...the agreement is written as such. There was no
intent written into the agreement that would have the
children be with one parent "1 hour more" than the other,
for the purposes of establishing custodial rights. It's
just not there.

I suppose the kids spend more time with one than the other
(truth be it would be with me...as I have taken the kids a
number of times while she had to deal with work
stuff....whereas I've not asked her to do same).
But...that's a cumbersome thing to detail.

- quote -

This can't be so, can it? I mean suppose a married couple
decides to file separate returns. One or the other can
claim the exemptions, can't they? One could argue that
neither of the parents had custody more than 50/50 in that
case.

- quote -

Well...the senior judge of the court signed off on it. He'd
be in the pokey with us!! And I might add...what we are
"doing" to our children is allowing them to spend as much
time with their father as with their mother.

Alan..I find your input a little confusing. I'm not sure I
get the gist. We lived together right up until the divorce
was finalized (June 30, 2006). Indeed...we still effectively
lived together for about a month thereafter. At no time
were we separated such that the children were with one or
the other of us more. In any event, nevermind the
peculiarities of this year...the question holds for all
subsequent years.

- quote -

We have an agreement for this year (detailed in emails) that
I take 2 specific children as exemptions this year and she
the other. So there will no conflict there. Again...let me
emphasize....the agreement and decree are SILENT on who is
the custodial or non-custodial parent. Perhaps there is some
definition in the tax code barring a clear delineation in
the decree/agreement. I don't know.

Fundamentally....I want to avoid having the refund help up
because of this question (assuming it doesn't breeze thru).
At the same time...I really rather avoid having to do the
extra paper work. Perhaps it is just easiest to assume one
or the other of us is custodial...and get the 8332 signed by
that person.

Alan...is there some place on the net I can go to read the
new law (hopefully it's written so that an engineer can
understand it!!)?

I don't know...there doesn't seem to be a real clear answer
on this. We (the ex and I) are not at odds on this. We
agree on who claims who. I'm just trying to make sure all
the i's are dotted and t's crossed.

Thanks all.

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<askinrw[at]yahoo.com> wrote:

- quote -

I would get a signed form & file on paper

___________________________________
<<< Benjamin Yazersky, CPA [NJ & NY] > > -----> real address on hobokeni or hobokenx <-----

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askinrw[at]yahoo.com wrote:

- quote -

With the change in tax law that took effect in 2005, it
doesn't matter what the divorce or separation agreement says
about who is the custodial parent. Under tax law, the
custodial parent is going to be the parent who had physical
custody for the greater part of the year. If you both
separated in 2006 and you both had custody before the
separation, then the custodial parent is the one who had
physical custody for the greater part of the rest of the
year.

In addition, even though your agreement may state who is
entitled to the exemption, it may not be hold up if the
noncustodial parent claimed the exemptions and the custodial
parent also decided to claim the exemptions. The
noncustodial parent will need either the 8332 or a signed
written statement that is equivalent to the 8332 or the
divorce agreement states that the noncustodial parent is
entitled to the exemption unconditionally, the year or years
that the exemption is granted and that the custodial parent
will not claim those exemptions for the applicable years. In
addition, the noncustodial parent would have to attach the
cover page of the decree, the pages that include the three
items mentioned and the signature page that contains the
signature of the other parent and the date.

I know of one tax case that was lost by the noncustodial
parent because the divorce decree that gave him the
exemption was not signed by the other parent. It was only
signed by her attorney.

--
Alan
http://taxtopics.net

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<askinrw[at]yahoo.com> wrote:

- quote -

Just a reminder. If it's exactly 50/50 physical custody
nobody gets exemptions for the kids, because they didn't
live with either of you for more than half the year.

- quote -

As long as everyone's getting along, sure.

As for your 50/50 arrangement, if you counted the days you'd
probably find that it's not exactly 50/50, but that's
irrelevant UNLESS you or your ex incurs child care expenses
or is eligible for the Earned Income Credit. In those cases
it matters a lot who the true custodial parent was for more
than half the year.

As for Head of Household filing status, as long as each of
you has physical custody of at least one child more than
half the year, both of you can claim HofH filing status.

--
Phil Marti
Clarksburg, MD

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<askinrw[at]yahoo.com> wrote
- quote -

I heard of a judge who will lock you both up if you really
did that to your children. Clearly they are with one parent
for at least one minute more than the other.

- quote -

I know that you had better get the dependency release
signed, if not when the divorce papers were signed, then do
it now.

- quote -

Sure you can. There's a nifty signature page, I use an
8453, that you can send in with any hard copies that you
need to.

Someone at the IRS making minimum wage will shuffle around
the building for hours on end trying to match up your papers
to an electronic file, if only they knew where that file
cabinet was.

--
Paul Thomas, CPA
paulthomascpapc[at]bellsouth.net

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I am a newly divorced father of 3 children.

Our settlement agreement stipulates that we "split" the
exemptions each year. I claim 2 this year..she 1. And it
switches next year.

The settlement agreement is silent on who is custodial and
non- custodial parent. We share true 50/50 physical and
legal custody.

Can I just go ahead and file claiming two of the children
without also appending a form 8332 or portions of the
agreement.

I ask because I usually electronically file. I can't do
this if I have to provide a hardcopy of the form or the
agreement.

Thanks.

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