Thursday, November 10, 2011

Need Form for Dependency Deduction

This was originally published on PAOO on September 1st, 2010.

I've told a couple of sad stories of damsels in distress who the Tax Court couldn't help.  Well here's hoping for a little schadenfreude for Caron Riganti  and Laura Brady as they contemplate the fate of Gary Knorad in TCM 2010-179.  I hate the apparent gender stereotyping from having two women going for innocent spouse treatment followed by a guy getting stiffed on a dependency deduction, but I'm stuck with the raw material that I find.  Except by special request, my material is less than a year old and sometimes hot off the press.

The dependency deduction probably absorbs more attention in divorce negotiations than it really deserves.  It it never going to amount to a very large amount of money.  It probably has to do with the emotions involved. What seems to be common nowadays is an every other year deal between the custodial and non-custodial parent.  What is commonly missed though is that in order for the non-custodial parent to take the deduction he or she must have a release signed by the custodial parent. If that detail is neglected, the non-custodial parent is not entitled to the deduction.

By the terms of his divorce decree Mr. Konrad believed he was entitled to a dependency deduction.  He submitted the decree to the tax court.  They noted it was signed by a clerk of the court and the judge, but not the former Mrs. Konrad.  She had refused to sign Form 8332 when it was provided to her.  Accordingly Mr. Konrad did not have a signed copy to attach to his return. 

The stipulation and the judgment petitioner submitted do not conform to the form and substance of Form 8332. Petitioner failed to procure Ms. Konrad's signature on either the stipulation or the judgment. When petitioner later attempted to procure Ms. Konrad's signature on Form 8332, Ms. Konrad refused. The signatures of the judge and the clerk from the divorce proceeding are not adequate substitutes for Ms. Konrad's signature. Thus, without her signature on a form that releases her claim to the dependency exemption deduction, petitioner failed to satisfy section 152(e)(2)(A) and may not claim L.W.K. for the purpose of receiving the exemption.

My response to this is that maybe you shouldn't get all that excited about crafting how the dependency deduction will be shared.  If you are going to be excited about it though remember that the non-custodial parent will need that form.  Custodial parents are unlikely to be willing to sign an unconditional permanent release, which is the only sure solution, but it is unlikely to be worth pursuing them in court if they are uncooperative in the future.  Such are the human dynamics that assure we will read more on this issue in years to come.

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