Properly Executed IRS Form 8332 is Key to Releasing Dependency Exemption and Trumps State Court Orders.

In this case, a married couple divorced with the ex-wife having custody of their son.  For the tax year at issue, the couple did not attach Form 8332 to the return, but did attach a copy of a 2003 arbitration award that allocated the exemption for the child to the ex-husband which allowed the ex-husband to claim the child and conditioned ex-wife providing ex-husband Form 8332 on ex-husband being current on child support payments in accordance with the divorce decree as of the end of the tax year.  Ex-husband was current on child support, but ex-wife did not execute and provide Form 8332.  IRS issued a notice of deficiency denying the child exemption for the ex-husband.   The ex-husband argued that the Congress intended that the parent entitled to the deduction be the one who receives it,  and that I.R.C.  Sec. 152(e)(2)(A) was ambiguous because the statute does not define “written declaration.”  The ex-husband also noted that state courts often allocate the federal dependency during divorce proceedings and that the principles of federalism required the IRS and federal courts to respect those allocations.  The  ex-husband also claimed that he was entitled to equitable relief.  The court noted, however, that I.R.C. Sec. 152(e)(2) requires that the taxpayer to attach a “written declaration signed by the custodial parent declaring the custodial parent “will not claim”  the child as a dependent in that calendar year.  In addition, the court noted that the statute  allows the custodial parent to transfer that claim to the non-custodial parent “by written release” which was not done. There must be an unconditional release of the right of the ex-wife to not claim the son as a dependent for the year in issue.  In addition, the court noted that the Child Tax Credit was unavailable.  Finally, since both parties were unable to claim their respective child as a dependent the Child Tax Credit was not allowed.  Armstrong v. Comr., No. 13-1235, 2014 U.S. App. LEXIS 4693 (8th Cir. Mar. 13, 2014), aff'g., 139 T.C. 468 (2012).