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Mom who hid the kids gets to claim them on her taxes despite the language of the divorce Judgment.

Posted by attorney Anthony Azemika

The United States Tax Court has ruled that Father whose ex-wife disappeared with their two children in 1999, cannot claim dependency exemptions that he was entitled to under the parties' divorce judgment (he made all his child support payments during their absence) because his ex-wife failed to execute I.R.S. Form 8332 (Release of Dependency Exemption) as required by the Judgment. In the case of Himes v. Commissioner, Father, a Nebraska resident, divorced his first wife, Mother, on September 11, 1995. Their divorce judgment required him to pay child support for their two children and allowed him to claim the dependency exemption for one of the children on his federal and state income tax returns for 1995, and all succeeding years. On January 22, 1999, Nebraska Trial Court modified the parties' divorce judgment to provide that Father would be entitled to claim the dependency exemptions for both children if his child support payments were current when each tax year ended. That modification also required Mother to execute and deliver an I.R.S. Form 8332 (Release of Dependency Exemption) to the county clerk, who would then verify status of Father's child support payments and send the release to Father. Later in 1999, Mother and the children left Nebraska for somewhere unknown. Father completely lost contact with the children, but continued to make his child support payments regularly. He also claimed dependency exemptions for the children on his federal tax returns, even though Mother never executed any releases. When Father and his current spouse filed their joint federal income tax return for the tax year 2006, they claimed dependency exemptions for both children (plus the child tax credits) and attached a copy of the modified divorce judgment to their return. Mother also claimed the dependency exemptions and the child tax credits for both children on her 2006 return. When I.R.S. assessed deficiency of $3,618 on Father and Wife's tax return attributable to exemptions and child tax credits, Father and Wife petitioned the U.S. Tax Court for relief. Now, the Tax Court has rules in favor of I.R.S. The U.S. Tax Court finds that (1) a divorced non-custodial parent cannot claim the dependency exemptions unless the custodial parent releases the dependency exemptions on I.R.S. Form 8332 or a substantially equivalent document, which non-custodial parent attaches to his or her return; (2) the modified divorce judgment attached by Father to his joint return does not qualify as a substantially equivalent document because it does not contain Mother's signature; (3) Father and Wife cannot claim dependency exemptions, despite his faithful payment of child support and Mother's failure to comply with the divorce judgment, because lack of I.R.S. Form 8332 or its substantial equivalent is fatal to their claim; and (4) Father and Wife cannot claim child tax credits because they are not entitled to claim dependency exemptions for the children.

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