Opinion
B329897
06-27-2024
PORSHIA BROWN, Plaintiff and Appellant, v. HAROLD GRAY, Defendant and Respondent.
Porshia Brown, in pro. per., for Plaintiff and Appellant. Harold Gray, in pro. per., for Defendant and Respondent.
NOT TO BE PUBLISHED
APPEAL from the judgment of the Superior Court of Los Angeles County, No. 20LBPT00051 Carla L. Garrett, Judge. Affirmed with directions.
Porshia Brown, in pro. per., for Plaintiff and Appellant.
Harold Gray, in pro. per., for Defendant and Respondent.
ROTHSCHILD, P. J.
In this family law proceeding involving appellant Porshia Brown (Mother) and respondent Harold Gray, Jr. (Father), Mother appeals from an order directing the parties to alternate years in which they claim their child as a dependent on their tax returns. We affirm the order and direct the court to make a further order necessary to implement and give effect to the court's order.
FACTUAL SUMMARY AND PROCEDURAL HISTORY
On February 2, 2022, the court entered a judgment establishing that Mother and Father are the parents of their child, and providing that the parents have joint legal and physical custody of the child. The court established a weekly parenting time schedule that provided Mother with 96 hours and Father with 72 hours of parenting time. The court ordered a holiday parenting time plan that provided the parents equal holiday parenting time. The court further ordered that Father pay $116 per month in child support to Mother.
On January 10, 2023, Mother filed a request for a change order seeking, among other relief, an order declaring that Mother is "the parent who claims [the child] for tax purposes." In support of this request, Mother stated that although she had advised Father that she would be claiming the child for tax purposes because she had "majority custody," Father filed his taxes for tax year 2021 before Mother claimed the child as a dependent on her tax return.
Father filed a response to Mother's request in which he requested "that the parents each alternate years with using the tax benefit" attributable to the child.
On April 24, 2023, the court held a hearing on Mother's request for change order. Regarding the tax issue, the court stated that the resolution of the issue does not "necessarily solely come down to whether this child spends less than 50 percent of time at one household versus the other. The other factors the court considers [are:] is . . . Father making child support payments[; and] [i]s he at all participating in that way." The court then explained that, given the parents' custody sharing arrangement and Father's payment of child support, it would be equitable to "have one party claim the child on odd tax years and the other party claim the child on even tax years." The court then ordered that, beginning with tax year 2023, Mother will claim the child on odd tax years and Father will claim the child on even tax years. The court did not direct Mother to execute a declaration releasing her claim to the child as a dependent in favor of Father.
Mother timely appealed.
DISCUSSION
Mother contends that the court erred: (1) by ordering that the parents alternate years in which they claim their child as a dependent on tax returns; and (2) by failing to require Mother to execute Internal Revenue Service (IRS) form 8332-the form approved for releasing a custodial parent's claim that a child is a dependent. We conclude that the court did not abuse its discretion in making the dependent child tax exemption allocation; and we will direct the court to order the parties to execute form 8332 or other declaration necessary to give effect to the court's allocation order.
Our framing of the second issue is based on Mother's heading in her opening brief, which states: "The court erred when it failed to require [Mother] to execute IRS form 8332 at the hearing." (Boldface & capitalization omitted.) In the text that follows, however, it appears that she is arguing that, if the court had ordered her to execute form 8332, that order would have been error "given that she is [the child's] custodial parent and has been since her birth in 2020." Our analysis and disposition address both issues.
The United States Internal Revenue Code provides generally an exemption, allowable as a deduction in computing taxable income, for a taxpayer's dependent child. (26 U.S.C. §§ 151(a) & (b), 152(a) &(c).) Section 152 provides generally that when two parents can claim a child as a dependent and the parents do not file a joint return, the child is the dependent of "the parent with whom the child resided for the longest period of time during the taxable year." (§ 152(c)(4)(B)(i).)
Unspecified statutory references are to Title 26 of the United States Code.
The judgment in this case provides that the parents' child resides with Mother 96 hours per week and with Father 72 hours per week (excluding the evenly-split time for holidays). Thus, Mother is the parent with whom the child resides for the longer period of time and would appear to be entitled to claim the child as a dependent under the general rule in section 152. (See Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2024) ¶ 10:221 (Hogoboom & King).)
Under subdivision (e) of section 152, however, a child can be treated as the dependent of the "noncustodial parent" if "the custodial parent signs a written declaration . . . that such custodial parent will not claim such child as a dependent for [specified taxable years], and [¶] . . . the noncustodial parent attaches such written declaration to the noncustodial parent's [tax] return for the [applicable] taxable year." (§ 152(e)(2).) A "custodial parent" for this purpose is "the parent having custody for the greater portion of the calendar year"; the "noncustodial parent" is "the parent who is not the custodial parent." (§ 152(e)(4).) Thus, under this section, parents can shift the dependent child exemption from a "custodial parent" to a "noncustodial parent" for specified tax years. (Hogoboom & King, supra, ¶ 10:221.)
The IRS has designated form 8332 for making the declaration required to shift the dependent child exemption to a noncustodial parent. (26 C.F.R. § 1.152-4(e)(ii) (2008).) The declaration may apply to a single year, a number of specified years, or all future years. (King v. Commissioner (2003) 121 T.C. 245, 249.) Although the IRS will accept a written declaration not on form 8332 if the declaration "conform[s] to the substance of that form and [is] . . . executed for the sole purpose of serving as a written declaration under [section 152]," a court order allocating the exemption to a noncustodial parent does not satisfy the requirement. (26 C.F.R. § 1.152-4(e)(ii) (2008).)
In Monterey County v. Cornejo (1991) 53 Cal.3d 1271 (Monterey County), our Supreme Court addressed the question whether, in a case concerning a father's child support payment obligation, a state court can allocate the claim of the dependent child exemption to a noncustodial parent. In that case, a mother had legal and physical custody of a child and the child's father paid child support. In response to a petition to increase the father's child support, the father requested that the court allow him to claim the child as a dependent for tax purposes. (Id. at p. 1274.) The trial court agreed with father and ordered that he" 'shall be allowed to claim the minor child . . . as a dependent for state and federal income tax purposes until further order of the court.'" (Ibid.)
The Supreme Court affirmed. The court stated that courts have "equitable power to allocate the dependency exemption to the noncustodial parent." (Monterey County, supra, 53 Cal.3d at p. 1280.) Because section 152(e) requires the custodial parent sign a declaration-such as form 8332-waiving the exemption to make the allocation effective, the Monterey County court recognized that "a court order by itself is insufficient under section 152(e) to accomplish an allocation to the noncustodial parent." (Monterey County, supra, at p. 1277.) Therefore, the court held that state courts have "the authority to allocate the dependency exemption by ordering the custodial parent to execute the necessary waiver." (Ibid.)
In Monterey County, as in the instant case, "the trial court assigned the tax exemption for the minor child to [the father] but did not order the custodial parent, [the mother], to sign the necessary declaration which must be attached to [the father's] tax return." (Monterey County, supra, 53 Cal.3d at p. 1280.) Therefore, the Supreme Court directed the trial court on remand "to make clear that [the mother] is to execute the requisite declaration in consideration of the increased child support she will be receiving." (Id. at p. 1281.) A declaration executed pursuant to such an order will be sufficient to shift the child dependent exemption to a noncustodial parent notwithstanding the custodial parent's opposition to the order. (George v. Commissioner (2012) 139 T.C. 508, 516 [rejecting parent's arguments that form 8332 executed by the parent pursuant to a state court order was invalid because the state court lacked jurisdiction to make the order and the parent allegedly signed it under duress].)
Monterey County was followed in Rios v. Pulido (2002) 100 Cal.App.4th 359 (Rios), a case with facts similar to the instant case. In Rios, the father and mother of a child shared legal and physical custody of the child. (Id. at p. 360.) When a dispute between the parents arose as to who was entitled to claim the child as a dependent for income tax purposes, the father sought an order awarding him the dependent child exemption for odd-numbered years. (Id. at p. 361.) The mother opposed the motion and argued that she provided more than 50 percent of the child's support and "had actual custody more than 50 percent of the time." (Ibid.) The court agreed with father, stating that the parents'" 'joint legal and physical custody arrangement . . . is essentially equal'" and it" 'is fair that the parties rotate the exemption.'" (Ibid.)
On appeal, the mother asserted that during five months of the relevant year the father had physical custody of the child for 40 percent of the time and during the other seven months he had physical custody 47 percent of the time. (Rios, supra, 100 Cal.App.4th at p. 361.) She argued that she was thus" 'the parent having custody for a greater portion of the calendar year,'" and therefore entitled to the dependent child exemption. (Ibid., quoting former § 152(e)(1); see § 152(e)(4)(A).) The Court of Appeal disagreed. Relying on Monterey County and the trial court's finding that the "custody arrangement was 'essentially equal,'" the court explained that the trial court "properly exercised its equitable powers to allocate the dependency exemption." (Rios, supra, at p. 362.)
As in Monterey County, the trial court in Rios "did not order [the mother] to execute the necessary declaration that must be attached to [the father's] return. Likewise, it did not order [the father] to execute the necessary declaration that must be attached to [the mother's] return in even-numbered years. Accordingly, [the court] remand[ed] the matter to allow the family law court to modify its order to require the necessary declarations." (Rios, supra, 100 Cal.App.4th at p. 362 .)
As in Rios, Father and Mother in this case have joint legal and physical custody of their child, and Father's share of parenting time is comparable to the father's share of parenting time in Rios. Like the family law court's decision in Rios, the court's decision in this case was a proper exercise of its "equitable powers to allocate the dependency exemption." (Rios, supra, 100 Cal.App.4th at p. 362.) Mother does not address or attempt to distinguish the Rios decision.
The court in this case, like the trial courts in Monterey County and Rios, failed to order the parties to execute form 8332 or other written declaration necessary to implement the allocation of the child dependent exemption. We direct the court to do so.
Mother contends that she cannot be compelled to execute form 8332 because she cannot "truthfully" sign the form "given the facts" in this case. Mother does not explain this statement; nor does she cite to the record or any authority to support it. Neither section 152, the regulations implementing that section, nor form 8332 requires the custodial parent to make any statement other than to declare that the parent will not claim the child as a dependent for the designated taxable year or years. The only required statement is thus a promise not to declare the child as a dependent. We see no reason why Mother cannot make that statement.
DISPOSITION
The order allocating the dependent child exemption is affirmed. The matter is remanded. Upon remand, the court shall enter an order directing the parties to execute form 8332 or other written declaration meeting the requirements of Internal Revenue Code section 152(e) in accordance with the court's allocation order and for each to provide the signed declaration to the other parent.
Father is awarded his costs on appeal.
We concur: CHANEY, J., WEINGART, J.