Ca. Tax Lawyer OCTOBER 2018, VOLUME 27, NUMBER 3

Amendment of Internal Code Section 152(e) in Order to Better Reflect Taxpayer Reality and Ensure Taxpayer Saftey

By James Creech2


IRC Section 152 is a lynchpin code section for many individual taxpayers. Section 152 defines who is a dependent for federal tax purposes. Under current law, who is a dependent, and who may claim the dependent, is determinative of who may claim certain deductions and credits.

Section 152(e) creates a narrow set of circumstances where a non-custodial parent may claim a dependent that lives with the other parent. In order for the non-custodial parent to claim a dependent, the custodial parent must sign a written declaration unconditionally stating that the custodial parent will not claim the dependent for a taxable year. It must name the parent who will claim the dependent and the tax year or years for which the release is valid. The non-custodial parent must attach the statement from the custodial spouse to their return. The regulations specifically state that a court order or separation agreement may not serve as a release for tax purposes.

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