IMPORTANT - PLEASE READ!!

[Brent]

January, 2004
PLEASE NOTE:  

The Internal Revenue Service has (once again) changed its interpretation of the law regarding the "special support test for divorced and separated parents."

The "Tax Tip for Never Married Dads (http://www.deltabravo.net/custody/irs.htm)" that previously appeared at this website, explaining the circumstances in which a never-married non-custodial parent of a child born out-of-wedlock could claim the child dependency exemption, should be disregarded.

For the past several years, it was the official Internal Revenue Service (IRS) position that the entitlement to claim the tax exemption for a child of never-married parents was not controlled by the "special support test" (commonly known as the "custody rule") but rather by the "regular support test" (taxpayer must have provided more than 50% of the dependent's total support).  

That has now (once again) changed.  Effective with the 2003 tax year, IRS now says the "custody rule" DOES apply to never-married parents. The change of IRS position is apparently the result of the decision of the US Tax Court in the case of King and Lopez v. Commissioner, 121 TC #12 (9/26/2003) (http://www.ustaxcourt.gov/InOpHistoric/ki7ng2..TC.WPD.pdf), which gave a revised interpretation to Internal Revenue Code § 152(e)(http://www4.law.cornell.edu/uscode/26/152.html), the law creating the "special support test" for divorced and separated parents.

So, for tax years 2003 and thereafter ............  

The "Tax Tip for Never Married Dads" that previously appeared at this website, explaining the circumstances in which a never-married non-custodial parent of a child born out-of-wedlock could claim the child dependency exemption, should be disregarded.

In view of the US Tax Court decision in the King/Lopez case and in view of the recent change of the IRS position, a non-custodial never-married parent should NOT claim the child as a dependent (regardless of how much support was paid) UNLESS the non-custodial parent's tax return is accompanied by a completed IRS Form 8332 signed by the custodial parent.

LAWRENCE D. GORIN
Law Offices of L.D. Gorin
521 S.W. Clay St., Suite 205
Portland, Oregon 97201
Phone: 503-224-8884 (afternoons, Pacific time)
Fax: 503-226-1321
E-mail: [email protected]
 

[XisNUTZ]

Thanks for the info Brent, They just keep putting another brick in the wall to completly "keep us out".

[Imom]

Bd and Bm have it in their co she claims on odd years, he claims on even years. Does the court order over ride this?

[MKx2]

I suggest calling IRS at their 800 # listed in your telephone directory and running the question by them.  Be sure to write down name and ID number that they are required to give you.

[patton]

If you are a never married parent and custody changes during the year.

Call the IRS ASAP.  They will ask you about 20 questions and then determine IF you can count the child.  Even from all the questions I was asked the bottom line is WHO has custody at the end of year?  If you have paperwork signed by the Judge and filed at the end of year more than likely you can count the dependent.

If you have court orders that state WHO gets to count child that  year, you just send those in with your tax info.

If the other parent claims the child and is not supposed to, you send in your paperwork and the IRS will take care of the matter.

BE sure to get Tax ID number of person you talk to and their name.

[patton]

I would still ask the IRS, BUT what they told me was if there was a question on who should count child send in certain pages of the court order.  The IRS will tell which pages they need.