I know YANATL and she should hire a lawyer in her jurisdiction etc. but hopefully someone can answer this.
A good family friend just told me that during her divorce, the judge ruled that each parent gets to claim their daughter for tax purposes in alternate years. My understanding is that it is whoever pays over 50% of the cost associated with the child which obviously will be the custodial parent. So three questions:
Is my interpretation of the law correct? Is there an easy way to find a citation for it?
Despite the Supremacy Clause, can a divorce judge make a ruling regarding taxes like this? Could she be held in contempt if she chooses to follow the Federal Law rather than the court order (I guess that’s a general law question).
Assuming my interpretation is correct, can my friend get help from an IRS office regarding correcting tax returns from the years she did not claim the daughter?
IANAL, yada yada yada, but it doesn’t sound like a matter of tax law so much as following a judges instructions. She wouldn’t have any trouble with the IRS if she files according to the rules, but judges can be pretty powerful in these cases (won’t someone think of the children!?!?!), so she’d be wise to follow the judges instructions unless she’s got clearance from her own lawyer to do otherwise.
Start by reviewing Publication 501 (pdf), Table 5 on page 12. Make sure you understand the 4 bullet items at the top of the table. After you understand those, make sure you understand the 5 tests in the left-hand column under “Tests to be a Qualifying Child.”
Then go to page 13 and read the section “Children of divorced or separated parents or parents who live apart” which will tell you about exceptions to the rules in Table 5 for children of divorced parents.
The exceptions allow for a non-custodial parent, who meets certain requirements, to claim the exemption for the child. One of the requirements is that the custodial parent must sign a form indicating that they will not claim the exemption.
Now, a state judge cannot change federal tax law or order a couple to violate the federal tax law, but a judge could certainly hold a person in contempt who failed to sign the release that would allow the other party to claim the exemption.
If you want legal citations, refer to IRC § 152. The exceptions for divorced parents are contained in subsection (e). Also refer to the regulations in Treas Reg § 1.152-4.
Thanks Alley Dweller. That was perfect. She’s going to go back to court to change visitation and support so I guess she throw in a request to change that part of the order too since he pays such a small fraction of her overall costs.