Revised Publication 501 Never Married


S

sand20man

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
 
P

Phil Marti

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.
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.
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.
Then there's no way you can get the exemption.
Can I take this
to court.
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.
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.
TT hasn't caught up with the law.

Phil Marti
Topeka, KS
 
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A

A.G. Kalman

sand20man said:
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.
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.
 
E

Ed Zollars, CPA

Phil said:
(e-mail address removed) (sand20man) writes:
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.
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>.
 
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D

D. Stussy

Phil said:
(e-mail address removed) (sand20man) writes:
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.
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?] :)
Then there's no way you can get the exemption.
I disagree (as above). There's no way that SHE can meet the
support test, but you do.
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.
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.
TT hasn't caught up with the law.
Perhaps their interpretation differs from the IRS for the
reasons above.
 

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