Custodial Parent and Form 8332

[peggysioux5]

Taxpayer and ex-spouse have joint custody of children and divorce decree states ex-spouse claims children. Taxpayer has children more than 50% of the time and provides a home for the children. In a current tax year, I would advise the taxpayer to file as HOH and submit a form 8332 to ex-husband. However, taxpayer is just now filing for 2018 and wants to file as described above; however, 8332 instructions state "the custodial parent must sign Form 8332 stating that she will not claim the child as a dependent for the tax year and the non-custodial parent must attach to his tax return." Ex-husband has already filed for 2018. Can a Form 8332 be prepared for 2018 and submitted to ex-spouse if filing late?

Peggy Sioux

[Max W]

If your client is the custodial parent, no 8332 is needed as the IRS does not recognize the terms of a divorce decree (they did betw. 1984 and 2009).

It is the ex,  who is the Non-Custodial parent that needs the 8332 to rightfully claim the dependents.  However, with or without an 8332, if both parents are trying to claim, it comes down to who files first. 

If your client files as HOH for 2018, the IRS will disallow the claim.  Then it can be appealed by providing documents supporting custodianship - school records, doctor/dental statements & health records, landlord's written testimony.    I am working a case right now with the same issues.

[Pacun]

I disagree with the "whoever files first wins". The IRS will send a letter to both parents and each will have to prove that the child slept more than 183 at home.

[Gail in Virginia]

To go back to what I understood the question to be, the T/P can give the ex-spouse the 8332 at any time.  The bigger question is will the IRS flag the return because it wasn't done timely, and will they accept it if is done after the fact?  Years ago, this would not have been a problem.  I have not had it come up for quite some time, so I am not sure what the service's position is on this.  But personally, I would try it. 

[Max W]

20 hours ago, Pacun said:

I disagree with the "whoever files first wins". The IRS will send a letter to both parents and each will have to prove that the child slept more than 183 at home.

I have never have had that happen in 20 years in preparing returns.  

[Pacun]

So, if the mother came to your office on April 14th and said... "I divorced my husband 2 years ago and the children lived with me all year in 2019. My husband filed and already claimed them and already got his refund".... what will be your answer?

 

[Lion EA]

Let's file correctly, but it may have to be on paper and mailed in.

[Terry D EA]

>>>>>>It is the ex,  who is the Non-Custodial parent that needs the 8332 to rightfully claim the dependents.  However, with or without an 8332, if both parents are trying to claim, it comes down to who files first.  <<<<<<<<

I think what Max is saying here is who files first or gets to the tax office first generally gets the refund first. Doesn't insinuate the case is over and the person who has/had the right to claim the dependency just loses. I have personally seen this many times.

10 hours ago, Pacun said:

So, if the mother came to your office on April 14th and said... "I divorced my husband 2 years ago and the children lived with me all year in 2019. My husband filed and already claimed them and already got his refund".... what will be your answer?

 

In response, I would tell my client exactly that if he/she had the right to claim the dependent, then paper file the return. The IRS would determine who had the right to the dependency. I would also tell me client if they prevail over the spouse, then the IRS would require the spouse to repay the funds received from improperly claiming the dependent which could/would open up very ill feelings between the parents. To me it all depends on the level of refund to be obtained. Sometimes it is best to just let sleeping dogs lie. Now add EITC to this and another can of worms will be opened.