Attorney-at-Law

“SWIFT, LIGHT AND UNATTACHED” – PART DEUX

In Uncategorized on 10/27/2017 at 16:06

“Swift” is the word; the race is to the swift.

Today Judge Nega has an off-the-bencher that brings back memories, as I described in my blogpost “Swift, Light and Unattached,” 12/19/12.

All y’all will remember Billy Armstrong and his failed effort to substitute his modified divorce decree for the sacred Form 8332 that his loved-once was supposed to sign and deliver, but didn’t. And Judge Holmes’ daring dictionary dive, which failed to save the day for Honest Billy. No? Then read the aforementioned blogpost, and weep.

But Judge Nega has good news today for Christopher James Brauer, Docket No. 21000-16S, filed 10/27/17.

CJ’s parenting plan, which was signed by both CJ and ex-Mrs CJ, is the lead-off here. “This parenting plan was an unconditional release wherein the custodial parent agreed, in the absolute, to waive her right to claim a dependency exemption deduction with respect to their minor child, K.D.B.; that petitioner, although he was the noncustodial parent, should instead be eligible to claim the dependency exemption.” Order, transcript, at p. 4.

Someone’s family lawyer was on the ball. I don’t know her/his name, but a Taishoff “well done” is in order.

Of course, as Judge Holmes pointed out in my abovecited blogpost five years ago, “…in our fallen world, there are few stages on which rational actors are more outpeopled by the children of wrath than in domestic-relations law.” So ex-Mrs CJ welshed and refused to sign the proffered Form 8332.

CJ attached the parenting agreement to his 1040, wherein he claimed all the good Section 152 benefits, so he could file timely, which he did.

IRS promptly hit CJ with a SNOD, claiming the parenting agreement didn’t satisfy the waiver provisions of Section 152.

CJ didn’t stand idly by the while, hoping Tax Court would save his dependency. He went into State court and dragged ex-Mrs CJ before the Bar of Justice, whereat ex-Mrs CJ coughed up the Form 8332, personally and manually signed. CJ puts the same into evidence.

Judge Nega: “At trial, respondent did not dispute the validity or veracity of the Form 8332. Respondent did not invite our attention to any terms of the parental plan or other documentary evidence indicating the noncustodial spouse’s waiver was conditional, and we find none. Respondent did not allege petitioner and the custodial parent [ex-Mrs CJ] colluded to ‘double-dip’ with respect to claiming a dependency deduction….” Order, transcript, at p. 7.

IRS’ one and only argument is that the Form 8332 wasn’t “attached” to CJ’s 1040. But Judge Nega won’t let IRS’ counsel get away with that one. “When pressed by the Court, respondent did not proffer an opinion as to whether petitioner could still properly file an amended return for tax year 2014, ‘attach’ the Form 8332, and again satisfy the requirements for claiming the subject dependency exemption. We observe that petitioner’s return was timely filed less than three years ago. We similarly note that the return of the custodial spouse is likely still open to either audit or amendment.” Order, transcript at p. 8.

Paying due obeisance to Billy Armstrong’s case, as affirmed by 8 Cir., and the dictionary stuffin’-chaw over the word “attachment,” Judge Nega opines as follows: “However,  because we find the parental [sic; probably “parenting”] plan petitioner included with his return, and the Form 8332 supplied to respondent satisfied the statutory requirements of section 152(e) (2), we need not and do not weigh in on that subject here.” Order, transcript at p. 8.

It’s a win across the board for CJ.

Takeaway- If you’re the noncustodial but entitled to a Form 8332 that your loved-once withholds, attach whatever you got to your 1040 and file timely, and head for State court with all due deliberate speed, invoking fire and slaughter upon the recalcitrant parental unit. And tell ‘em Judge Nega sent you.

Only one tiny quibble: Judge Nega, why didn’t you designate this? CSTJ Lew (“That Spelling! Oh, That Spelling!”) Carluzzo designated some mathematical brain-twister, and you made me plow through 125 irrelevant orders to find this gem. On a Friday afternoon, yet.

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