MLR

Divorced? Don’t overlook proper form for claiming dependents

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The Tax Court has refused to allow double deductions for dependency claims by divorced parents.

Michael Shenk and his wife were divorced. Their 2003 "Judgment of Absolute Divorce" provided that Shenk's ex-wife would have primary residential custody of their three minor children.

Shenk and his ex-wife agreed that he would claim their eldest son as a dependency exemption on his income tax return in odd-numbered years and would claim the other two children in even-numbered years. The ex-wife would claim the eldest son in even-numbered years and the other two children in odd-numbered years. The couple's divorce decree did not require the ex-wife to execute in Shenk's favor a Form 8332, Release of Claim to Exemption for Child of Divorced or Separated Parents.

For 2009, both Shenk and his ex-wife claimed two dependency exemptions. The children resided with the ex-wife for more than half of 2009, and she didn't execute in Shenk's favor a Form 8332 or equivalent document for any year. For 2009, Shenk filed a federal income tax return on which he claimed dependency exemption deductions and the child tax credit for two of the children.

This was consistent with Shenk's understanding of the terms of the judgment, but he didn't attach Form 8332 to his return. He also claimed head-of-household filing status.

Shenk's ex-wife, the custodial parent, filed a 2009 federal income tax return. On that return, she also claimed two dependency exemption deductions, resulting in one child being claimed on both parents' returns.

The IRS allowed Shenk the dependency exemption deduction for one of the children but disallowed the deduction for the child that had also been claimed by the custodial parent.

The Tax Court ruled that, since the custodial parent did not execute, and Shenk did not attach to his return, a Form 8332 or equivalent release, Shenk was not entitled to claim the dependency exemption deduction or the child tax credit. Also, he wasn't entitled to head-of-household filing status (Michael Shenk v. Commissioner, 140 TC No. 10, May 6, 2013).