Rios v. Pulido

Opinion

GILBERT, P. J.

Internal Revenue Code sections 151 and 152 allow an income tax dependency exemption for a parent who has custody of a child for the greater portion of the calendar year. Here we hold federal law does not preempt the family law court, in its discretion, from alternating the dependency exemption between the parents even though one parent may have custody during the calendar year for less than half the time.

Gloria Pulido appeals an order by the family law court declaring that Albert J. Rios is entitled to an income tax dependency exemption for his minor child for the tax year 1999 and for odd-numbered years thereafter. We remand the matter so that the family law court may modify its order to require execution of declarations waiving the exemption, but otherwise affirm.

Facts

On December 6, 1995, a son was born to Rios and Pulido. They shared physical custody of the child, although by court order, Pulido received greater custody time.

On December 21, 1998, the family law court ordered that neither party pay child support because “the guideline amount is rebutted by the present

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custodial arrangement.” The court order did not allocate the income tax dependency exemption to either parent. In prior years, Pulido claimed the dependency exemption.

On May 28, 1999, the family law court ordered that the parties share joint legal custody of the child. It then allocated physical custody to each parent, which provided nearly equal custodial time.

In 2000, Rios and Pulido each apprised the other that he or she intended to claim the child as a dependent for 1999 income tax purposes. Each filed an income tax return claiming the child as a dependent, thereby piquing the interest of the Internal Revenue Service.

On February 16, 2001, Rios sought an order awarding him the dependency exemption for 1999 and the following odd-numbered years. Pulido resisted the motion and argued that she provided more than 50 percent of the child’s support in 1999 and that she had actual custody more than 50 percent of the time.