Tax question

[babyfat]

Here is the situation
According to the Parenting plan every other year they switch up who claims the child on income tax's. This year would be dad's turn.

Parenting plan is in limbo right now because ex pulled a nasty to get full custody and circut court Judge has mom as primary residental parent with dad having supervised visits. Neither have legal custody the state does.

Dad pays child support and because of income pays 70% of the childs support with mother responcible for 30%

Who gets to claim the child? Person with whom child is living or person who is responcible for more of the support?
*No back support owed*
 
Can this be found on the Irs website somewhere? If so is there a link you can provide?
Thanks

[lilywhite]

When parents are not married to each other, the parent who has custody more than 50% of the nights gets to take the exemption as long as the parents together (mother and father) provide more than 50% of the support.

Sounds like the mother gets it.

[mistoffolees]

>When parents are not married to each other, the parent who
>has custody more than 50% of the nights gets to take the
>exemption as long as the parents together (mother and father)
>provide more than 50% of the support.
>
>Sounds like the mother gets it.
>
>

This is true in most cases. However, as I read the original post, there is a valid, court-ordered parenting plan in case which defines who gets the deduction. If that is true, then the divorce decree takes precedence. If there's no court order, then you are correct.

It sounds like the current order is being challenged. That is irrelevant. It remains valid until it is superceded by a new court order.

Sorry if I'm misunderstanding. The original post wasn't clear.

[Ref]

"Children of Divorced or Separated Parents
A dependent is either a qualifying child or a qualifying relative. In most cases, because of the residency test (see item (3) under Tests To Be a Qualifying Child in Table 3), a child of divorced or separated parents will qualify as a dependent of the custodial parent under the rules for a qualifying child. However, the noncustodial parent may be able to claim the exemption for the child if the special rule (discussed next) applies.

Special rule for divorced or separated parents.   A child will be treated as the qualifying child or qualifying relative of his or her noncustodial parent if all of the following apply.
The parents:

Are divorced or legally separated under a decree of divorce or separate maintenance,

Are separated under a written separation agreement, or

Lived apart at all times during the last 6 months of the year.

The child received over half of his or her support for the year from the parents.

The child is in the custody of one or both parents for more than half of the year.

Either of the following applies.

The custodial parent signs a written declaration, discussed later, that he or she will not claim the child as a dependent for the year, and the noncustodial parent attaches this written declaration to his or her return. (If the decree or agreement went into effect after 1984, see Divorce decree or separation agreement made after 1984, later.)

A pre-1985 decree of divorce or separate maintenance or written separation agreement that applies to 2007 states that the noncustodial parent can claim the child as a dependent, the decree or agreement was not changed after 1984 to say the noncustodial parent cannot claim the child as a dependent, and the noncustodial parent provides at least $600 for the child's support during 2007. See Child support under pre-1985 agreement, later. "

http://www.irs.gov/publications/p504/ar02.html#d0e1405

In essence, Custodial Parents always have the right to claim the child even if they spend $0 on them during the year UNLESS there is an order or a written agreement to the contrary. It seems, if that parenting agreeement is the latest one filed with the court, that you should be able to attach that to the return the years you claim the child and be fine.

Good Luck
Ref (Public Accountant)

[mistoffolees]

However, in this case, the parenting plan specifically states that the father gets the deduction in alternate years. This is sufficient for the IRS in most cases- if the parenting plan has been signed by the court.

[Ref]

nm

[babyfat]

I'm going to try to clarify a little better. I tried to be as strait foward as possible.
The actual parenting plan was done when the parents were legally divorced. It states in that that Dad has custody during the week and mom has the child every weekend. It also states they claim every other year. This year being "Dad's" year. The problem came into play when mom got nasty and made several calles to cps (I mean a lot) and eventually cps took legal custody of the child and placed her with mom. So currently according to family court order dad has custody and gets to claim this year. Now since this is in circut court the judge there ordered legal custody to the state, and primary physical with mom until the state figures out which party is full of bull crap, but there is no mention of taxes. Now last year about this time we got a letter from mom stating that she was going to claim the child (it was her year anyway) and she said in the letter that because of the parenting plan this was her year. The parenting plan was suspened last year in Sept  but was followed before that so dad should have been able to claim but he followed the parenting plan anyway.

Realy what I'm asking is even though a "higher" court changed physical custody temporarly where does that leave the rest of the parenting plan? Did that suspened the custody part or the whole thing? I'm thinking it might mean the whole thing because according to the divorce decree and the parenting plan both parties "waived child support" yet now that mom has custody she gets child support but never had to pay it.

[mistoffolees]

I would stick with the original parenting plan wrt taxes. In general, if one part of an agreement is changed or struck down, the remainder would not be changed (you might even have wording to that effect in the agreement).

If it were me, I would file the taxes (as quickly as possible), take the deduction, and attache a copy of the original parenting plan. Since the court has not changed the tax portion of the parenting plan, I would argue that this is the most appropriate action.

But you'd be better off asking your attorney that question.

[babyfat]

>But you'd be better off asking your attorney that question.

He is planning on doing that but I wanted to have some info first. He really likes this lawyer but I happen to think he is a wimp. You know his child his choice of lawyers I have to myob! I personally don't care much who claims the child but it just makes me mad she used the child like she has and now is getting paid to do it. The way he puts it he is paying his ex to abuse his kid. If you knew the whole story you'd want to vomit!

[lilywhite]

From the IRS website

http://www.irs.gov/faqs/faq-kw23.html

Can a court order determine who may claim a dependency exemption for a child? Does the court order supersede the IRS requirements?

Federal law determines who may claim a dependency exemption. Please refer to Publication 504, Divorced or Separated Individuals, for more information on the special rule for children of divorced or separated parents.

In other words, if the mother has custody (which the IRS defines as having the child live with her for more than half the year) she gets to claim the exemption UNLESS she fills out and gives the father form 8332.  By law, she is the one who gets it.

If you had a court order that said WITHOUT EXCEPTION that one parent or the other got the exemption, then you could attach that with your tax return too.