File Memorandum

Date:               7/30/2015 9:44:00 AM

By:                  David Glenn

Client:            John Doe

Re:                  Dependent Exemption for Divorced Parents


Facts:

  1. John and Jane Doe divorced in 2008 and have one child named Jill
  2. The Doe’s divorce decree provides that they will alternate each year claiming Jill as a dependent on their tax return
  3. Jill was age 9 at the end of 2014
  4. Per the divorce decree, 2014 is John’s year to claim Jill but Jane filed her return first and claimed Jill
  5. Jill spends every other weekend with John and the remainder of the time with Jane

Issue(s):

  1. If John claims Jill on his return as allowed by the divorce decree, how will the IRS decide who gets to claim Jill?

Conclusion:

Jane is the custodial parent because Jill spends more nights with her during the year.  Because Jane is the custodial parent and did not provide a completed Form 8332 to John, the IRS will not allow John to claim Jill as a dependent.  Even though the divorce decree provides that 2014 is John’s year to claim Jill, the IRS will award the dependent exemption to Jill as the custodial parent.

Analysis:

  1. §152 defines a dependent as either a qualifying child or a qualifying relative
  2. §152(c)(1) defines a qualifying child as –
    • A child, brother, sister, stepbrother, or stepsister of the taxpayer or a descendant of any of these
    • Shares the same principal place of abode as the taxpayer for more than half of the tax year
    • Under age 19 or is a student under age 24
    • Has not provided more than one-half of their own support
    • Hasn’t filed a joint tax return other than to claim a refund
  3. §152(c)(4)(B) provides that when parents of a child don’t file a joint return, the parent with whom the child spent more time with during the year gets to claim the child. If the time was equal, it’s the parent with the highest AGI.
  4. §152(e) provides rules for divorced parents claiming their child as dependent. If these requirements are met, the child will be treated as the qualifying child of the noncustodial parent –
    • Parents provide more than one-half of the child’s support
    • Parents are divorced or legally separated
    • Parents live apart at all times during the last 6 months of the calendar year
    • The child is in the custody of 1 or both of the parents for more than one-half of the year.
    • The custodial parent signs a written declaration that they will not claim the child for the taxable year and the noncustodial parent attaches such written declaration to his/her return.
    • §1.152-4(e)(1)(ii) provides that this written declaration is made on Form 8332.
  5. §152(e)(4) defines custodial parent as the parent having custody for the greater portion of the calendar year. Noncustodial parent is defined as the parent who is not the custodial parent.
  6. §1.152-4(d) further defines custodial parent as the parent with whom the child resides with for the greater number of nights during the year.