Unmarried Parents Could Waive Child Exemption

In King, 121 TC 245 (2003), the Tax Court held that the Sec. 152(e) support test applies to all parents, regardless of whether they were ever married to one another. The court ruled in favor of a noncustodial father who claimed a dependency exemption after the childs mother waived her right to it, even though the parents were never married.

Law

Generally under Sec. 152(a), a parent who provides over half of the support for a child during a tax year can claim a dependency exemption on his or her return. However, a special support test applies under Sec. 152(e) to parents who are legally divorced, separated or lived apart at all times during the last six months of the tax year. The child is treated as a dependent of the parent who had custody for the greater portion of the year (the custodial parent); the noncustodial parent cannot claim a dependency exemption on his or her return.

The custodial parent can release his or her right to claim a dependency exemption by completing Form 8332, Release of Claim to Exemption for Child of Divorced or Separated Parents, and providing it to the noncustodial parent. The release can be for the current year, a set number of years or for all future years. The noncustodial parent must attach the executed Form 8332 to his or her return for each year in which a dependency exemption is claimed.

Facts

Jimmy Lopez and Sabrina King are the biological parents of Monique, who was born in 1986; they were never married to one another. In 1988, King executed Form 8332 to waive her right to claim a dependency exemption for 1987 and all future tax years. Lopez claimed Monique as a dependent from 19871999 and attached Form 8332 to his return each year.

King married in 1993 and began to claim Monique as a dependent on her joint return. The IRS issued notices of deficiency to both the Kings and Mr. and Mrs. Lopez for tax years 1998 and 1999 (Mr. Lopez had also since married). Monique resided with the Kings during 1998 and 1999, who provided over half of her support for those years.

Tax Courts Decision

Sec. 152(e) clearly states that the special support test applies to parents who live apart for the last six months of the year; it does not state that the parents must be married to one another. The Tax Court typically considers conclusive a statutes plain meaning. If a statute is unclear or silent, the Tax Court will look to legislative history to determine Congressional intent. It can override the statute if the legislative history clearly contradicts the statutes plain meaning.

The Kings (and the IRS) asserted that Sec. 152(e)s legislative history supported an interpretation that a dependency exemption could be waived only by parents who have been married to one another. The Tax Court reviewed the Sec. 152(e) legislative history, but found no support for this assertion. Sec. 152(e) was amended in 1984 to add that the statute applies to parents who have lived apart for the last six months of the year, and to allow waiver of the dependency exemption. The amendments intent was to resolve disputes between parents without involving the IRS.

Given that the legislative history did not contradict the statutes plain meaning, the Tax Court applied the Sec. 152(e) special support test and ruled for Mr. and Mrs. Lopez.

Conclusion

In response to this decision, the IRS recently revised Form 8332 and Pub. 504, Divorced or Separated Parents, to allow parents who have never been married to each other to release their dependency exemption. The Form 8332 instructions previously stated that the form could only be used by a custodial parent who had been married to the childs noncustodial parent; the marriage requirement has been removed from the revised form.

Additionally, the IRS modified Pub. 504 to remove the marriage requirement when applying the Sec. 152(e) support test. Tax advisers should consider whether it would be beneficial for clients to file Form 8332, if they had not previously done so due to the marriage requirement. Clients should also be advised that the revised Form 8332 and Pub. 504 still do not provide procedures for revoking an executed waiver; thus, parents should be cautious when executing a waiver that applies to future years.

From Cheryl L. Bayard, CPA, Timonium, MD