Child Exemption – IRS form 8332
During tax season, parents with a Massachusetts child support order frequently ask me whether or not they can claim their child on their taxes. The IRS rule is that the custodial parent has the right to claim the exemption. This is the default rule, but it is necessary to review the court’s judgment before assuming that the custodial parent gets to claim the child. Let’s take a closer look.
Typically, when Federal and State laws collide, Federal law supersedes State law. The determination of who gets to claim the child is an example where the court’s order trumps the IRS regulations. If the Massachusetts judgment (often an agreement of the parties) states that a specific party gets to claim the child as an exemption on his/her taxes, then that decision is binding.
If the court judgement was entered on or before prior to December 31, 2008, then the IRS will accept the applicable section of the judgement as proof of one party’s right to claim the child. If the judgment went into effect on or after January 1, 2009, then it is necessary for the custodial parent to complete IRS form 8332. http://www.irs.gov/pub/irs-pdf/f8332.pdf
If you are the non-custodial parent and the judgment grants you the right to claim the child and the custodial parent either refuses to sign form 8332 or has already filed his/her taxes and claimed the child, then you need to file a complaint for contempt. Once you get in front of the judge make sure to know the difference in your tax liability between claiming and not claiming the child. This is an amount you can request that the custodial parent pay you in addition to legal fees and lost wages due to having to file the complaint for contempt.