Revised Publication 501 Never Married

Discussion in 'Tax' started by sand20man, Feb 5, 2004.

  1. sand20man

    sand20man Guest

    OK, here we go again. Now Publication 501 state that if you
    were unmarried the special rules are applied for divorced or
    sperated parents. Last year it stated this differently. I
    pay 67% of day care expense, Full medical provided by me,
    and I also pay $500 in child support. We were never married,
    have been apart for 3 years, she re-married this year and I
    have a court order stating I have joint custody but the
    child lives at the mothers house. I pay well over half of
    the support for the child. Someone please Clear this up for
    me or have better knowledge about this, their is no way she
    would fill out a 8332 form to release her. Can I take this
    to court. Turbotax online says I can claim her by the GUIDE
    ME section but what I am reading in Publication 501 this
    year, say's I cannot.

    PLEASE HELP
     
    sand20man, Feb 5, 2004
    #1
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  2. sand20man

    Phil Marti Guest

    The law changed in 2003 because of the Tax Court. Now the
    same rules that apply to formerly married parents apply to
    parents who were never married.
    Then there's no way you can get the exemption.
    You can take just about anything to court, but you'd
    probably lose. You'd have to pay the additional tax, claim
    a refund, and then sue for refund after denial.
    TT hasn't caught up with the law.

    Phil Marti
    Topeka, KS
     
    Phil Marti, Feb 6, 2004
    #2
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  3. sand20man

    A.G. Kalman Guest

    As the court order does not specify who is the custodial
    parent, (it says joint) the parent who has physical custody
    for more than half the year is deemed to have provided more
    than half of the total support and would get the exemption.
    I sense from your post that she has physical custody. If
    that's the case, she would have to release the exemption to
    you on a Form 8332 in order for you to claim it.
     
    A.G. Kalman, Feb 6, 2004
    #3
  4. Actually the law didn't change--rather, the Tax Court ruled
    that the way the IRS was *interpreting* the law was
    incorrect. The IRS has now accepted the Tax Court's view on
    this one, and that resulted in the change in the
    publications.

    That's important because, in reality, the custodial parent
    in this case could file a claim for refund for all open
    years if she hadn't claimed the child. The flip side of
    that is that the IRS could attempt to claim tax due from the
    noncustodial parent, but politically that would be difficult
    <grin>.
     
    Ed Zollars, CPA, Feb 10, 2004
    #4
  5. sand20man

    D. Stussy Guest

    I disagree. In that case, the never-married parents CHOSE
    to execute a form 8332, and thus became bound by its
    meaning. I do not see how this would change a thing for
    never-married parents who do NOT use the form. I don't see
    where the Court said that the never-married MUST use the
    form.... Form 8332, the administrative result of IRC
    152(e)(2), can only apply to transfer the dependency
    exemption for children described in 152(e)(1)(A), of which
    (i) ff. requires parents "who are divorced or legally
    separated ...," whether in actuallity or just temporarily
    and informally (the 6 month clause in (iii)).

    [Interesting aside: If the parents were legally married,
    but never filed a joint return, but [one or both] qualified
    and filed as HoH, should they be considered as
    "never-married" since for all years, they were considered as
    "unmarried" per IRC 7703(b) for tax purposes?] :)
    I disagree (as above). There's no way that SHE can meet the
    support test, but you do.
    Without knowing what was actually argued in the trial
    briefs, I would be hesitant to state anything about the
    correctness of the Court's opinion.
    Perhaps their interpretation differs from the IRS for the
    reasons above.
     
    D. Stussy, Feb 10, 2004
    #5
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