TRIAL BY CHECKLIST: INCOME TAX DEPENDENCY EXEMPTION
October 11, 2010 § 9 Comments
A practice tip about trial factors is here.
The Mississippi Supreme Court ruled in Nichols v. Tedder, 547 So.2d 766, 775 (Miss. 1989), that the Chancellor may award the dependency exemption for income tax purposes to either parent as part of its determination of child support.
If your client wants the court to award her the tax dependency exemption, it will take more than just asking her what she wants the court to do. In Louk v. Louk, 761 So.2d 878, 884 (Miss. 2000), the Mississippi Supreme Court laid out the factors that the Chancellor is required to consider before making the award. They are:
- The value of the exemption at the marginal rate of each parent;
- The income of each parent;
- The age of the children and how long the exemption will be available;
- The percentage of the cost of supporting the children borne by each parent; and
- The financial burden assumed by each parent under the property settlement agreement in the case.
In Laird v. Blackburn, 788 So.2d 844, 852 (Miss. App. 2001), the Court of Appeals added a sixth: the value of the non-economic but valuable contributions made by the custodial parent.
Although I have often heard parties testify that they wanted the court to award them the exemption, I have never heard any testimony on factor 1.
It seems to me that if you fail to put on the requisite proof, you run the risk that the judge will simply say that the proof did not support such an award, or, if the trial judge does award it, that the Court of Appeals will take it away or put your client to the considerable expense of having to retry the issue so that the trial judge will have the evidence necessary to adjudicate it.