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We have a discussion going on in the office, and I'd welcome some input from anyone here.

Client has an order of child support which indicates he can take the child's exemption in even years if his child support is paid to date on 12/31. He also has a statement from the State showing all of his payments for 2006 and a zero balance as of 12/31/2006. He indicates the childs mother will not sign the form 8332 releasing the exemption to him.

IF he submits the pages from the support order with the statement that the child support has been paid, will that be enough to satisfy the IRS? On the one hand, it seems like it should. On the other hand, because the order is conditional, it doesn't seem like it meets the requirements.

Any suggestions?

Rose
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Client has an order of child support which indicates he can take the child's exemption in even years if his child support is paid to date on 12/31. He also has a statement from the State showing all of his payments for 2006 and a zero balance as of 12/31/2006. He indicates the childs mother will not sign the form 8332 releasing the exemption to him.

IF he submits the pages from the support order with the statement that the child support has been paid, will that be enough to satisfy the IRS?


No. His only recourse is in state court, either to get them to order her to sign it or to sue her for monetary damages.

Phil
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Client has an order of child support which indicates he can take the child's exemption in even years if his child support is paid to date on 12/31. He also has a statement from the State showing all of his payments for 2006 and a zero balance as of 12/31/2006. He indicates the childs mother will not sign the form 8332 releasing the exemption to him.

IF he submits the pages from the support order with the statement that the child support has been paid, will that be enough to satisfy the IRS?


No. His only recourse is in state court, either to get them to order her to sign it or to sue her for monetary damages.


Does this answer change if the child support order is part of a divorce decree? If the client produces a divorce decree that incorporates the child support order by reference and incorporates the ex-wife's signature, and either the decree or the child support order states that the wife won't take the exmption if the client meets the stipulated conditions, would that be sufficient?

I'd argue that if the child support order is indeed part of divorce decree, and the decree in total meets the requirements for post-1984 decrees, the client should be able to get the exemption. (I also don't expect my VITA clients to have saved documentation at that level of detail.) Of course, the opinion of the IRS carries a bit more weight than mine does.

Patzer
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Thanks, Phil. That's what I thought.
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Interesting idea, Patzer. Unfortunately in the case in point, the parents were never married. Actually the child support order has the signatures of all parties involved - except the child.
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Going only from my VITA training as well (first day of volunteering today!) I have to agree with Patzer that it may very well fly.

Here's the wording from Publication 17 (emphasis mine):
Written declaration. The custodial parent may use either Form 8332 or a similar statement (containing the same information required by the form) to make the written declaration to release the exemption to the noncustodial parent. The noncustodial parent must attach the form or statement to his or her tax return.

Also from Pub 17:
Parents who never married. This special rule for divorced or separated parents also applies to parents who never married.


So it seems to me that if the form included does have all the information required on Form 8332, it would be acceptable. That information appears to include SS# of both parents, child's name, year (in this case, even years), and the signature of the custodial parent, then you'd probably be okay. Including the proof of meeting the requirement couldn't hurt.

If Phil, Peter, or Ira wish still wish to disagree, I would take their word stronger than mine, that's for sure. But by the wording of the IRS, if you have a 8332 substitute, that should be okay. And it seems to make no difference whether they are divorced or never married.
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So it seems to me that if the form included does have all the information required on Form 8332, it would be acceptable. That information appears to include SS# of both parents, child's name, year (in this case, even years), and the signature of the custodial parent, then you'd probably be okay. Including the proof of meeting the requirement couldn't hurt.

If Phil, Peter, or Ira wish still wish to disagree, I would take their word stronger than mine, that's for sure. But by the wording of the IRS, if you have a 8332 substitute, that should be okay. And it seems to make no difference whether they are divorced or never married.
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But the problem, as posed in the OP, was that the custodial parent refused to sign, and there lies the problem.

Now if you claim the kid without the 8332, you'll get into a correspondence audit if not the personal kind, and may, with the right documentation, be able to persuade a live IRS person you're entitled to the exemption. But I haven't tried that route myself.

As Phil (I believe) stated above, your only other recourse is to get the divorce lawyer(s) back into the act if she continues to refuse.

Bill
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But the problem, as posed in the OP, was that the custodial parent refused to sign, and there lies the problem.

The OP said the mother refused to sign a 8332, not that there was no signature on the initial child support agreement. If there was a signature on the initial agreement that specified this (as well as that other information), I would think you can go with that.

But if thats not the case, then I wouldn't have any reason to argue with Phil.
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