Tax Exemption Belongs to the Custodial Parent Absent Clear Explanation of Deviation

This isn’t a new principle, but it’s one misunderstood enough by the culture and by judges that it bears discussion. Again.

Alabama child support guidelines assume that the custodial parent will be keeping and using the tax exemptions for the children. This is clear from the comment to the guidelines promulgated in 1993 and carried forward in the 2008 amendments to the guidelines. The issue re-emerged, however, in A.M.B. v. J.M.S., Case No. 2070783 (Ala. Civ. App. January 9, 2009). The mother sought and received public assistance. The state pursued child support from the father, who sought to claim the tax exemption. After hearing, the juvenile court without explanation ordered the parents to alternate years claiming the exemption. The mother appealed.

The appeals court’s opinion is short and frank. The appeals court agreed with the mother that the award of the tax exemption to the father represented a deviation from the child support guidelines, one the court has discretion to order but only after a written finding, supported by the evidence, that the application of the guidelines would be unjust or inequitable. The court quoted K.H.L. v. K.G.M., 782 So. 2d 804 (Ala. Civ. App. 2000):

This court has consistently held that the allocation of the dependency exemption is a matter within the discretion of the trial court. Flanagan v. Flanagan, 656 So. 2d 1228 (Ala. Civ. App. 1995). However, the Comment to Rule 32, under the heading ‘Tax Exemptions’ states, ‘The Schedule of Basic Child Support Obligations assumes that the custodial parent will take the federal and state income tax exemptions for the children in his or her custody.’ Therefore, we instruct the court to enter a statement explaining its deviation from the guidelines in awarding the father the tax-dependency exemption in alternating years. Flanagan, supra.

The appeals court reversed the juvenile court ordering it on remand to (a) award the exemption to the mother pursuant to the Alabama child support guidelines, or (b) issue written findings, supported by the evidence, that the application of the guidelines would be unjust or inequitable.

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