Tax Question

[JBMD]

What is the name of your state (only U.S. law)? OK

I am the Father in this situation.

Mother has "primary custody," however time split for 2008 was as follows -
Jan (mostly spent with Mother)
Feb thru July (with Father as mother was on deployment)
August and September (mostly spent with Mother)
October thru December - time split 50/50.

Mother has always claimed child on tax return, however there is nothing in our court orders that states who is to claim our son on their return.

I believe that due to the time spent in my home in 2008 that I would be entitled to take the tax exemption per the IRS guidelines. I provide more than 50% of his support - mother did not pay child support while away and we agreed to no child support after she returned, however I agreed to pay for all of child's expenses (clothing for both homes, school expenses, activities, etc.)

Does anyone know if this is correct or if there would be any other reason that I would not be able to take the exemption?

 

[Ohiogal]

You get the exemption.

ETA: IF Ld disagrees with me, listen to her.

The only hassle you may have is with the court order stating she has primary custody.

 

[LdiJ]

What is the name of your state (only U.S. law)? OK

I am the Father in this situation.

Mother has "primary custody," however time split for 2008 was as follows -
Jan (mostly spent with Mother)
Feb thru July (with Father as mother was on deployment)
August and September (mostly spent with Mother)
October thru December - time split 50/50.

Mother has always claimed child on tax return, however there is nothing in our court orders that states who is to claim our son on their return.

I believe that due to the time spent in my home in 2008 that I would be entitled to take the tax exemption per the IRS guidelines. I provide more than 50% of his support - mother did not pay child support while away and we agreed to no child support after she returned, however I agreed to pay for all of child's expenses (clothing for both homes, school expenses, activities, etc.)

Does anyone know if this is correct or if there would be any other reason that I would not be able to take the exemption?

Normally I would agree with Ohiogal. The IRS goes by overnights. Based on what you are describing it sounds to me like dad had signficantly more overnights than mom this year, and therefore dad should be the custodial parent under the tax code, and have the exemption.

There is one possible spanner in the works however. Under the tax code time deployed (for a CP) does not count as time away from your children, just as college does not count as time away from home (again for a CP). It doesn't sound to me like you made any official custody changes during 2008. Therefore if you were my client, I would want to do case law research before making a decision as to who should have the exemption, and I just don't have time to do case law research for free these days. So get dad a consult with a local tax professional.

 

[JBMD]

Normally I would agree with Ohiogal. The IRS goes by overnights. Based on what you are describing it sounds to me like dad had signficantly more overnights than mom this year, and therefore dad should be the custodial parent under the tax code, and have the exemption.

There is one possible spanner in the works however. Under the tax code time deployed (for a CP) does not count as time away from your children, just as college does not count as time away from home (again for a CP). It doesn't sound to me like you made any official custody changes during 2008. Therefore if you were my client, I would want to do case law research before making a decision as to who should have the exemption, and I just don't have time to do case law research for free these days. So get dad a consult with a local tax professional.

Thank you so much for your help!

Would it make a difference if her time away was not labeled as "deployed" ... I'm not actually sure what it was called, all I know is that she was in training in Texas for six months. Also, if the order does not address who claims the child and our time is split 50/50 ... will she always have the exemption since she is the "primary custodial parent."

Also, do you know what section of the code states the time deployed provision you stated above?

 

[Ohiogal]

Normally I would agree with Ohiogal. The IRS goes by overnights. Based on what you are describing it sounds to me like dad had signficantly more overnights than mom this year, and therefore dad should be the custodial parent under the tax code, and have the exemption.

There is one possible spanner in the works however. Under the tax code time deployed (for a CP) does not count as time away from your children, just as college does not count as time away from home (again for a CP). It doesn't sound to me like you made any official custody changes during 2008. Therefore if you were my client, I would want to do case law research before making a decision as to who should have the exemption, and I just don't have time to do case law research for free these days. So get dad a consult with a local tax professional.

Hence why I defer to you on tax matters. Ohiogal knows what she doesn't know and she doesn't know the tax code. I know enough and what I don't know I ask.

 

[LdiJ]

Thank you so much for your help!

Would it make a difference if her time away was not labeled as "deployed" ... I'm not actually sure what it was called, all I know is that she was in training in Texas for six months. Also, if the order does not address who claims the child and our time is split 50/50 ... will she always have the exemption since she is the "primary custodial parent."

Also, do you know what section of the code states the time deployed provision you stated above?

I don't remember the code section, sorry. Some of us are codeheads, some of us are not. I believe that being away for training counts as deployment.

There is no such thing as true 50/50, except perhaps in a leap year (assuming that holidays work out exactly evenly) Therefore the parent that has the greatest number of overnights in the calendar year, gets the exemption. That will, on the average, alternate on an every other year basis.

If you have a year that is a true 50/50 then the exemption goes to the parent with the highest AGI....on a joint tax return, that means the joint AGI.

Now those are the tiebreaker rules. Mom and Dad can agree to something different between themselves.