Author(s): Ann Stuursma, Tara Velting

In an Internal Revenue Service Memorandum released June 19, 2009, the Office of Chief Counsel responded to a request for advice on the documentation that a noncustodial parent must provide to the IRS to claim an exemption for a child under §152(e) of the Internal Revenue Code.

Under this Code Section, a noncustodial parent can claim an exemption for a child if the custodial parent signs something releasing a claim to the exemption, and the noncustodial parent attaches this to his/her tax return.

The question has centered around what qualifies as a written statement or release by the custodial parent allowing the noncustodial parent to claim the child as a tax exemption. Some tax filers have attached Judgments of Divorce or Separation Agreements in support of their claimed exemptions.

In this memorandum, the Service made it clear that effective for taxable years beginning after July 2, 2008, the regulations now require that the written release signed by the custodial parent must be on Form 8322. The regulations make it clear that a noncustodial parent may not attach a court decree or separation agreement executed after July 2, 2008, to prove a claim to a dependency exemption.

ln its Memorandum, the Service found:

“ln amending § 152(e) to provide for the release of a custodial parent’s claim to exemption by a written declaration, Congress intended to avoid “difficult problems of proof and substantiation,” minimize controversy by providing certainty, and minimize costs to the Government and to parents.”

Whether you are the custodial or noncustodial parent, be aware that in order to allow the noncustodial parent to claim a child as a dependency exemption, Form 8332 must be filed along with your tax return.

For more information, contact Ann Stuursma and Tara Velting.