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George Saenz, the Bankrate.com Tax Talk columnist Noncustodial dad claims child as exemption

Dear Tax Talk,
In 2005 my ex-wife claimed I did not pay medical bills on my son. She states she sent them. At the end of the year I wanted her to sign the form allowing me to claim my son, as in the decree I can claim every year as long as I am 90 percent current in medical bills received by Dec. 15 and 100 percent current in child support. I had paid my child support in full since the beginning of 2005 and never received the medical bills from her. I told her I was claiming my son.

In 2006 we both got a letter from the IRS that our son was claimed twice. She sent the IRS proof of bills and payment. I have nothing to send as I didn't get the bills. Please tell me if you have heard of this situation and what I can do. I also offered to pay her what she paid for the bills as long as I got a copy and she said it was too late, she was claiming the child. Our decree states I have until Dec. 15 to pay any bills received from her. She never called or talked to me about the unpaid bills. She just paid them and said she sent copies. Thank you.
-- Rob

Dear Rob,
Regardless of what your divorce decree states, without a signature on Form 8332 you have no right under the tax code to claim your child as a dependent.

Form 8332 is a release of claim for a child's exemption that needs to be signed by the custodial parent in order for the noncustodial parent to properly claim the child on his return. Unless your ex-wife signs the form, there is not much you can do. You should never have claimed your son on the 2005 tax return without the release. Basically, the IRS does not want to come between you and your ex. The buck stops on your desk, not that of the IRS.

If your ex-wife isn't seeking medical reimbursement, maybe you're better off without claiming your child as a dependent. Depending on your income level, you may not be getting enough benefit from the exemption as opposed to the cost of the medical bills. If that's not the case, then your only redress against your ex is back in the state courts.

To ask a question on Tax Talk, go to the "Ask the Experts" page and select "taxes" as the topic.

Bankrate.com's corrections policy -- Posted: March 1, 2007
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