Taxation - Personal Income Tax - Economic Impact Payments for Qualifying Children - Parent Could Not Claim Child as Dependent for Years She Did Not File Income Tax Return Due to No Income and Thus Not Entitled to Stimulus Payments for Those Years

Calli, Calli & Cully, Utica (Herbert J. Cully of counsel), for plaintiff.

S.F., defendant pro se.

Plaintiff C.F. and defendant S.F. were formerly married. They have two children together: D.F. (age 15) and A.F. (age 13). On September 24, 2014, the parties were divorced by order of Supreme Court, Erie County (Hon. Sharon S. Townsend, J.S.C.). The judgment of divorce incorporated the parties' "matrimonial settlement agreement," which appears to have been finalized in July 2014. That settlement agreement, as relevant to the instant proceeding, provided the following with respect to how the parties' children were to be claimed in connection with income tax returns:{**86 Misc 3d at 1014}

"Each party shall claim one child as a dependent for federal and state income tax purposes. The Husband shall be entitled to claim [D.F.] each and every year and the Wife [*2]shall be entitled to claim [A.F.] each and every year. In the event that Mother cannot, for any reason, claim [A.F.] as a dependent for federal and state income tax purposes, the Father retains the right to claim her. In the event that Father cannot, for any reason, claim [D.F.] as a dependent for federal and state income tax purposes, the Mother retains the right to claim him."

The settlement agreement further provided that plaintiff would have primary residential custody of both D.F. and A.F., and it is undisputed that she has maintained residential custody of both children consistently since the divorce.

Plaintiff, who now resides in Oneida County, filed the instant suit against defendant on March 23, 2023. Plaintiff's complaint alleges that even though she has retained the right to claim the child A.F. as a dependent for tax purposes, defendant submitted an IRS Form 8332 that allowed him to wrongfully receive stimulus monies relative to A.F. that plaintiff should have received. Plaintiff's complaint further alleges that defendant caused marital tax deficiencies in 2012 and 2013 that were negatively impacting her. On this latter point, however, plaintiff and her attorney stated at trial that plaintiff is no longer seeking damages related to the tax deficiencies because she has since been granted "innocent spouse status" by the IRS with respect to these deficiencies. Thus, what remains pending before the court is the question of whether defendant wrongfully obtained stimulus monies, otherwise known as "economic impact payments" (EIPs), that plaintiff should have received as the custodial parent.

Defendant, who is self-represented, timely answered the complaint. On May 15, 2024, plaintiff filed a note of issue, and the court thereafter scheduled a nonjury trial for November 19, 2024. That trial date was adjourned, at defendant's request, to January 9, 2025. At trial on January 9, 2025, plaintiff appeared with her counsel, Herbert J. Cully, Esq., and defendant appeared on his own behalf. Both parties testified. The court received into evidence plaintiff's exhibits 1 and 2, defendant's exhibits A through H, and court's exhibits 1 and 2. At the close of the proof, the court reserved decision.{**86 Misc 3d at 1015}

At issue is an IRS Form 8332 ("Release/Revocation of Release of Claim to Exemption for Child by Custodial Parent") defendant claims plaintiff signed with respect to the child A.F. on May 23, 2015. The purported original of this document was received as defendant's exhibit G and a copy was received as plaintiff's exhibit 1. This form lists defendant as the noncustodial parent and plaintiff as the custodial parent, and is signed, according to defendant, by plaintiff. If plaintiff did in fact sign this form—which is a disputed fact in this case—that signature would have had the impact of plaintiff agreeing "not to claim an exemption for [A.F.] for the tax year(s) all future years." The term "all future years" was written into a blank in which the years for waiving the exemption were to be specified.

During her testimony, plaintiff repeatedly denied ever having seen this form and repeatedly and unequivocally denied that she signed it. She explained that for the year 2015, she did not intend to file a tax return because she had not worked, so she advised defendant that he could claim A.F. as a dependent for that tax year alone. Plaintiff believed this was required by the parties' marital settlement agreement insofar as she was not filing and thus could not avail herself of claiming A.F. as a dependent that year. According to plaintiff, she signed a document on a lined piece of notebook paper stating that defendant could claim A.F. as a dependent for the [*3]tax year of 2015 alone, but she never agreed to waive her right to claim A.F. as a dependent for future years, nor did she sign the subject IRS Form 8332. When asked to compare her signatures on the parties' marital settlement agreement (the signatures shown on court's exhibits 1 and 2), which she agreed she had signed, to the signature on the subject IRS Form 8332, plaintiff agreed that there were some similarities between the signatures but continued to insist that she never signed the IRS Form 8332 related to A.F. and had never seen that form before. Consistent with her assertion that she only intended to forgo claiming A.F. in 2015 and not in subsequent years, plaintiff testified that from 2016 forward, she has tried to claim A.F. on her taxes each year but always has received an "error message" indicating that another person (in this case, defendant) had already claimed A.F. as a dependent.

Defendant, by contrast, testified that on May 23, 2015, he went to plaintiff's home in Whitesboro and brought two copies of IRS Form 8332, one for A.F. and one for D.F. According to{**86 Misc 3d at 1016} defendant, he filled out the top portion of each of these forms, providing his name and Social Security number, and plaintiff filled out her information, her Social Security number, wrote in "all future years," and then signed and dated the forms. Defendant testified that he was present and saw plaintiff sign both of these forms, the originals of which he offered into evidence as defendant's exhibits G and H. Defendant denies that plaintiff signed a lined piece of notebook paper, instead saying plaintiff directly signed an IRS Form 8332 for each child. Per defendant, the reason plaintiff signed these forms was because she was not working and had no plans to return to work, and because she thought allowing defendant to claim both children would allow the tax deficiencies from 2012 and 2013, which arose when the parties still had been married, to be more easily extinguished. Plaintiff, in addition to denying that she signed these IRS forms, denied that she intended never to return to work. Despite that assertion, the parties agreed that in fact, plaintiff has not worked at any time since the parties' divorce.

Both parties testified that plaintiff has had primary custody of both D.F. and A.F. throughout the period since the parties' divorce. They also agreed that for a period of time from the start of the COVID-19 pandemic in March 2020 until late 2022—a period of roughly 2½ years—defendant did not exercise his visitation with D.F. and A.F. and spoke with them sparingly. Starting in late 2022, after plaintiff filed a visitation petition in Family Court, defendant again began exercising once-per-month visitation with the children. Of note, defendant resides in Cheektowaga, Erie County, whereas plaintiff resides with the children in Whitesboro, Oneida County; as a result, the geographic distance between the parties appears to factor into defendant's exercise of his visitation rights.

Plaintiff testified that because the IRS has granted her "innocent spouse status" with respect to the 2012 and 2013 tax deficiencies, those deficiencies are defendant's sole responsibility, and she is no longer seeking relief or damages related to those deficiencies. She calculated the amount she is seeking in reimbursement from defendant as $7,600.00, which she purports is comprised of the following figures:

• A $1,200.00 stimulus amount that was applied toward defendant's tax deficiency;

• A $1,700.00 payment on April 15, 2021, that likewise was applied toward defendant's tax deficiency;{**86 Misc 3d at 1017}

• Two $1,400.00 payments (totaling $2,800.00) that were issued to defendant for both children on March 29, 2021; and

• $1,500.00 in additional child tax credit monies that she attempted to claim for A.F. for tax year 2021, after receiving six monthly payments of $250.00 each for A.F. under the [*4]American Rescue Plan Act from July through December of 2021.

By the court's calculation, this amount totals $7,200.00, not $7,600.00 as testified to by plaintiff. Defendant does not dispute receiving these funds; he concedes that he did receive all such payments, through either credits to his tax deficiencies or direct payments. Indeed, defendant's exhibit E confirms that he received a first EIP of $2,200.00 in 2020, a second EIP of $1,800.00 in 2020, and a third EIP of $4,200.00 in 2021 (for a total of $8,200.00). As explained below in reference to the three COVID-19-era stimulus/EIP programs, these figures are consistent with defendant having received stimulus funds for both children on all three occasions when EIPs were issued. Specifically, of the $8,200.00 defendant received in EIP funds, $5,000.00 of it appears to have been provided to him on behalf of D.F. and A.F.

In 2020 and 2021, in response to the COVID-19 pandemic and the economic aftermath resulting therefrom, Congress passed a series of three laws aimed at stimulating the economy and providing economic relief to individuals and families: the Coronavirus Aid, Relief, and Economic Security (CARES) Act in March 2020 (Pub L 116-136, 134 US Stat 281, codifying 26 USC § 6428), the Consolidated Appropriations Act in December 2020 (Pub L 116-260, 134 US Stat 1182, codifying 26 USC § 6428A), and the American Rescue Plan Act of 2021 in March 2021 (Pub L 117-2, 135 US Stat 4, codifying 26 USC §§ 6428B, 7527A) (see United States Government Accountability Office, Stimulus Checks: Direct Payments to Individuals during the COVID-19 Pandemic [GAO-22-106044, June 2022], available online at https://www.gao.gov/assets/gao-22-106044.pdf).

The CARES Act authorized the first EIP, which began being issued on April 10, 2020, in the amount of up to $1,200.00 per adult and $500.00 per child (see id.). The Consolidated Appropriations Act, which included the Tax Relief Act of 2020, authorized{**86 Misc 3d at 1018} the second EIP, which began being issued on December 29, 2020, in the amount of up to $600.00 per adult and child (see id.). The American Rescue Plan Act of 2021 authorized the third and final EIP in the amount of up to $1,400.00 per adult and child (see id.). In addition to authorizing the third EIP, the American Rescue Plan Act of 2021 took the further step of temporarily expanding the eligibility for the Child Tax Credit (CTC), increasing payment amounts for the CTC, and providing for advance monthly CTC payments from July 2021 through December 2021 in the amount of $250.00 to $300.00 per child (see id.). Internal Revenue Service Publication 5534-A (available online at https://www.irs.gov/pub/irs-pdf/p5534a.pdf) explained the rollout of these advance CTC payments, indicating that such payments could even be received by enrolled non-tax filers.

The Appellate Division, Third Department described the first two of these stimulus payments as follows:

"As relevant here, the Coronavirus Aid, Relief, and Economic Security Act (the CARES Act) (see 26 USC § 6428, as added by Pub L 116-136, 134 US Stat 281, 335-337 [2020]) provided eligible individuals an 'advance refund amount' of the applicable tax credit of $500 for each qualifying child (26 USC § 6428 [a] [2]; [f]). Thereafter, eligible individuals were entitled to an additional 'advance refund' of the applicable tax credit of $600 for each qualifying child under the Tax Relief Act of 2020 (26 USC § 6428A [a] [2]; [f], as added by Pub L 116-260, 134 US Stat 1182, 1965-1971).

"Contrary to the mother's and the AFC's contentions, these federal stimulus payments were not paid 'for the benefit of the minor children,' but they were the parties' advance refund for a tax credit earned pursuant to their last tax return, which was jointly filed, and [*5]which was partially measured by the number of children the tax filers had listed as dependents (see 26 USC §§ 6428 [a], [f]; 6428A [a], [f])" (Matter of Josefina O. v Francisco P., 213 AD3d 1158, 1159-1160 [3d Dept 2023] [footnote omitted]).

The Child Tax Credit is governed by section 24 of the Internal Revenue Code (26 USC § 24). This credit applies "against the tax imposed" on the taxpayer "for the taxable year" in which the credit is claimed as a deduction (26 USC § 24 [a]). For tax years 2019 and 2020, the CTC amount was{**86 Misc 3d at 1019} $2,000.00 per child (see 26 USC § 24 [h] [2]), and the CTC could not be received unless the taxpayer had earned income in the amount of at least $3,000.00 (see 26 USC § 24 [h] [6]). For tax year 2021, however, these rules changed to correspond to the CTC amendments enacted in the American Rescue Plan Act of 2021. For tax year 2021, the amount of the credit increased to $3,000.00 per child for children above age six (see 26 USC § 24 [i] [3]) and the credit became fully refundable, meaning that tax filers could receive the credit even without any income (see 26 USC § 24 [i] [1]). Additionally, section 24 was amended to provide that the amount of the credit claimed on a tax filer's 2021 tax return would be reduced by the amount of advance CTC payments the tax filer received during the 2021 tax year (see 26 USC § 24 [j] [1]). The CTC changes for tax year 2021 are summarized in IRS Fact Sheet FS-2022-32, which is available online at https://www.irs.gov/pub/taxpros/fs-2022-32.pdf.

For all three of the COVID-19-era EIP statutes, how a child is deemed to qualify a parent for EIP funds is defined the same way. Specifically, the CARES Act and the Consolidated Appropriations Act each refer to "the number of qualifying children (within the meaning of section 24 (c)) of the taxpayer" (26 USC §§ 6428 [a] [2]; 6428A [a] [2]), and section 24 (c), in turn, defines qualifying children by reference to 26 USC § 152 (c) (see 26 USC § 24 [c]). The American Rescue Plan Act of 2021 uses a different term—"dependents of the taxpayer"—in place of "children of the taxpayer" (26 USC § 6428B [b] [2]), but like the other EIP statutes, it defines "dependents" by reference to 26 USC § 152 (see 26 USC § 6428B [e] [1]). Section 152 defines the term "dependent" to include both "a qualifying child" and "a qualifying relative" (26 USC § 152 [a]), but in this case, the definition of "qualifying relative" is not relevant. Thus, for this court's purposes, the analysis and application of all three EIP statutes here turns upon the term "qualifying child," which is defined at 26 USC § 152 (c).

Under 26 USC § 152 (c), five requirements must be shown in order to establish that an individual is a "qualifying child" for a particular taxpayer for a particular taxable year: (1) the individual is "a child of the taxpayer" or the "descendent of" a child of the taxpayer (26 USC § 152 [c] [1] [A]; [2] [A]); (2) the individual "has the same principal place of abode as the taxpayer for more than one-half of" the taxable year (26 USC § 152 [c] [1] [B]); (3) the individual is younger than the taxpayer and either{**86 Misc 3d at 1020} has not turned 19 by the close of the tax year or is a student who has not turned 24 by the close of the tax year (26 USC § 152 [c] [1] [C]; [3] [A]); (4) the individual "has not provided over one-half of [their] own support" during the tax year in question (26 USC § 152 [c] [1] [D]); and (5) the individual has not filed a joint return with the individual's spouse for the tax year in question (26 USC § 152 [c] [1] [E]).

Importantly, however, 26 USC § 152 (e) modifies these criteria in cases involving divorced parents in which the child lives for more than half the year with one of the parents (see 26 USC § 152 [e]). In such a situation, a child "shall be treated as being the qualifying child . . . of the noncustodial parent for a calendar year if" (26 USC § 152 [e] [1] [B]) "the custodial parent signs a written declaration . . . that such custodial parent will not claim such child as a [*6]dependent for any taxable year beginning in such calendar year" (26 USC § 152 [e] [2] [A]) and "the noncustodial parent attaches such written declaration to the noncustodial parent's return for the taxable year beginning during such calendar year" (26 USC § 152 [e] [2] [B]). This rule applies to override 26 USC § 152 (c) (1) (B), which otherwise would require a qualifying child to reside with the taxpayer for at least half of the subject tax year (see 26 USC § 152 [e] [1] [noting that this "(s)pecial rule for divorced parents" applies "(n)otwithstanding subsection (c) (1) (B)"]).

After comparing defendant's exhibit E to the three EIP rollouts discussed above, the court provides the following breakdown of the EIP funds defendant received in 2020 and 2021, as relevant to the instant dispute:

Preliminarily, there is no dispute that defendant was entitled to receive, and is now entitled to retain, the portions of the three EIP rollouts that provided him with payments for his own status as an adult tax filer. Those funds total $3,200.00 ($1,200.00 + $600.00 + $1,400.00 = $3,200.00). The court rules{**86 Misc 3d at 1021} that plaintiff, quite obviously, is not entitled to recovery of any of those funds. To the extent that plaintiff's request for the return of a $1,200.00 stimulus amount that was applied toward defendant's tax deficiency may refer to the individual portion of the stimulus funds defendant received pursuant to the CARES Act in 2020, that request for relief is denied. Apart from that claim, it does not appear that plaintiff is seeking any of the EIP funds defendant received by virtue of his status as an individual adult tax filer.

The crux of this dispute is the EIP funds defendant received for the children, which, on the evidence presented, total $5,000.00 ($1,000.00 + $1,200.00 + $2,800.00 = $5,000.00). The court finds that these amounts, which equal two times the qualifying child amounts for each of the three EIP rollouts, establish that defendant received funds for both children under each of the three stimulus programs. Defendant's receipt of this $5,000.00 in EIP funds is at issue here. Also at issue is whether defendant prevented plaintiff from obtaining $1,500.00 in CTC monies she attempted to claim for A.F. for tax year 2021 under the American Rescue Plan Act of 2021. In total, therefore, the court considers a total of $6,500.00 of potential damages to be in dispute [*7]here.

Plaintiff's position is that because both children were living with her, she was entitled to receive all stimulus monies earmarked for the children. Defendant's position is that the residence of the children is not determinative, that he was entitled to receive stimulus monies for D.F. because D.F. was his dependent under the terms of the parties' divorce, and that he was entitled to receive stimulus monies for A.F. as a result of plaintiff having signed the IRS Form 8332 in 2015, which permitted him to claim A.F. as a dependent for all tax years thereafter.

Although all three stimulus statutes define "qualifying child" to include the requirement that the child have "the same principal place of abode as the taxpayer for more than one-half of" the taxable year (26 USC § 152 [c] [1] [B])—a requirement that would seem to preclude defendant from obtaining stimulus monies for either child—that requirement can be overridden (see 26 USC § 152 [e] [1]) if "the custodial parent signs a written declaration" indicating that the "custodial parent will not claim such child as a dependent" for the subject tax year (26 USC § 152 [e] [2] [A]). With respect to D.F., the parties agreed in their 2014 matrimonial settlement agreement that defendant{**86 Misc 3d at 1022} "shall be entitled to claim [D.F.] each and every year" as "a dependent for federal and state income tax purposes." In the court's view, this constitutes "a written declaration" by plaintiff, within the meaning of 26 USC § 152 (e) (2), that she would "not claim" D.F. "as a dependent" for all tax years from 2014 forward. By application of 26 USC § 152 (e) (2) to the parties' marital settlement agreement, D.F. was defendant's "qualifying child" under all three stimulus programs, and plaintiff is not entitled to receive any of the EIP funds related to D.F. Accordingly, the court rules that defendant can retain the $2,500.00 portion of EIP funds ($500.00 + $600.00 + $1,400.00 = $2,500.00) he received related to D.F.

With respect to A.F., the analysis is more complicated. Although the parties' marital settlement agreement provided, as a default, that plaintiff "shall be entitled to claim [A.F.] each and every year," it also provided that if plaintiff could not, "for any reason, claim [A.F.] as a dependent for federal and state income tax purposes," then defendant would "retain[ ] the right to claim her." This exception is what caused plaintiff to waive her right to claim A.F. for the 2015 tax year; according to plaintiff's own testimony, she felt that because she was not going to file a tax return in 2015 because she was not working, she was required by the parties' marital settlement agreement to let defendant claim A.F. for that year. Thus, plaintiff seemed to understand that for years she was not working, she would not be able to file an income tax return, and defendant therefore would get to claim A.F. Although plaintiff disputes having waived her right to claim A.F. as a dependent for "all future years" and states that from 2016 onward, she continually filed income tax returns despite not having employment income, she acknowledged that not working in 2015 meant she could not file a tax return for that year, and that not filing a tax return for that year meant that she could not claim A.F. as a dependent for that year. Plaintiff failed to explain why she did not follow this same logic in all the ensuing years, given the undisputed proof that she has not returned to work at any point since 2015.

The court concludes that regardless of whether plaintiff signed the IRS Form 8332, the fact that plaintiff did not have income during tax years 2015-2020 meant that she could not file income tax returns, and thus could not claim A.F. as a dependent for any of those years, a point that plaintiff conceded in explaining why she allegedly made a single-year waiver in{**86 Misc 3d at 1023} 2015. Plaintiff's inability to claim A.F. as a dependent during those years means that under the parties' marital settlement agreement, defendant retained the right to claim A.F. Plaintiff having signed a settlement agreement that permitted defendant to claim A.F. as a dependent under these [*8]circumstances constitutes "a written declaration" by plaintiff, within the meaning of 26 USC § 152 (e) (2), that she would "not claim" A.F. "as a dependent" when those circumstances arose. Notably, all three EIP statutes describe the EIP funds as being a "credit against the tax" of the individual (26 USC §§ 6428 [a]; 6428A [a]; 6428B [a]), meaning that if an individual cannot file income taxes, there is nothing against which the credit can be applied (see Josefina O., 213 AD3d at 1159 [the first two stimulus packages provided an "advance refund"]).

Because plaintiff, without income, could not file an income tax return for tax year 2020, the year covered by the first two stimulus packages (i.e., the CARES Act and the Consolidated Appropriations Act), the marital settlement agreement allowed defendant to claim A.F. as a dependent for tax year 2020, and thereby entitled defendant to receive her EIP funds under the first two stimulus packages by operation of 26 USC § 152 (e) (2). Thus, by application of the marital settlement agreement, plaintiff is not entitled to receive any of the EIP funds for A.F. arising out of the first two stimulus packages, and defendant is entitled to retain the $1,100.00 he received for A.F. under those packages ($500.00 + $600.00 = $1,100.00).

The analysis changes with respect to the 2021 tax year, however, because the American Rescue Plan Act of 2021 provided that unlike in prior years, an individual could file a tax return to claim the CTC even if that individual did not have income (see 26 USC § 24 [i] [1]). As a result, plaintiff may have been able to file a tax return for the 2021 tax year and attempt to claim A.F. as a dependent for that year, even though she could not have done so in prior years. The possibility of plaintiff filing a valid income tax return for tax year 2021 implicates a total of $2,900.00, comprised of the $1,400.00 stimulus payment defendant received relative to A.F. in March 2021 and the $1,500.00 in additional CTC funds plaintiff says she could not claim despite having received $1,500.00 in advance CTC payments for A.F. during the 2021 calendar year. Plaintiff is correct that after receiving advance CTC payments for A.F. from July through December 2021 totaling $1,500.00, the remaining CTC balance she may have been entitled to{**86 Misc 3d at 1024} claim on her 2021 tax return would have been $1,500.00 (see 26 USC § 24 [i] [3]; [j] [1] [total credit was $3,000.00 and advance payments were to be deducted from that, with remainder recoverable upon filing 2021 taxes]). Per plaintiff, when she attempted to file her 2021 tax return and recover the remaining $1,500.00 in CTC funds for A.F., she received an "error message" stating that someone else had already claimed A.F. as a dependent. The evidence supports the conclusion that it was defendant who claimed A.F. for 2021, and who thereby prevented plaintiff from claiming A.F. for CTC purposes for tax year 2021.

For CTC purposes, the term "qualifying child" is defined by specific reference to 26 USC § 152 (c) (see 26 USC § 24 [c] [1]) rather than 26 USC § 152 more broadly, meaning the CTC's determination of a "qualifying child" does not appear to be subject to the "written declaration" of waiver exception in 26 USC § 152 (e) (2). Because the 26 USC § 152 (e) (2) exception apparently is inapplicable to the CTC, whether plaintiff signed the disputed IRS Form 8332 is irrelevant to determining whether for 2021, a year in which plaintiff could actually file an income tax return, she could claim the CTC with respect to A.F. Applying only 26 USC § 152 (c), as the CTC statute directs, A.F. would be a "qualifying child" for plaintiff but not for defendant; although four of the five criteria are met for both parents, only plaintiff can say that A.F. lived with her for more than half of the 2021 tax year. As a result, the court concludes that plaintiff was entitled, on the tax return she filed for tax year 2021, to claim and obtain CTC funds related to A.F. Because defendant improperly claimed A.F. as his "qualifying child" for purposes of the CTC and thereby prevented plaintiff from obtaining a $1,500.00 tax credit to [*9]which she should have been entitled, the court directs that defendant must pay plaintiff $1,500.00.^[FN*]

With respect to the $1,400.00 in EIP funds defendant obtained for A.F. for the 2021 tax year under the American Rescue Plan Act of 2021, the issue of whether plaintiff signed the disputed IRS Form 8332 is directly implicated. If plaintiff{**86 Misc 3d at 1025} in fact signed that form and waived her right to claim A.F. as a dependent, 26 USC § 152 (e) (2) would be triggered and A.F. would have been defendant's "qualifying child," rather than plaintiff's "qualifying child," for purposes of the American Rescue Plan Act's EIP funds (see 26 USC § 6428B [e] [1] [defining the term "dependent" by reference to 26 USC § 152]). If plaintiff did not sign that form, then A.F. would be her "qualifying child" by operation of the definition in 26 USC § 152 (c).

In analyzing whether plaintiff signed the IRS Form 8332 related to A.F., the court notes that plaintiff premised her case upon the terms of the parties' marital settlement agreement, under which she generally would be entitled to claim A.F. as a dependent, and that defendant produced the subject IRS Form 8332 as a defense to plaintiff's claim that he impermissibly claimed A.F. The court has been presented with diametrically opposed testimony regarding whether plaintiff signed the subject form and is unable to determine, one way or the other, whether plaintiff in fact signed that form and waived her right to claim A.F. as a tax dependent for "all future years." Defendant unequivocally says she did, and plaintiff unequivocally says she did not, and neither party is viewed by the court as being more or less credible than the other. In the absence of expert handwriting analysis, the court feels unqualified to compare versions of plaintiff's signatures and make its own determination regarding whether the signature on defendant's exhibit G is genuine. Ultimately, this court was unable to make that determination. Under these circumstances, where the court cannot definitively conclude that plaintiff signed the subject IRS Form 8332, the court is left to fall back on the terms of the parties' marital settlement agreement, which would have permitted plaintiff to claim A.F. for tax year 2021, a year for which she could file a tax return despite lacking an income. Consequently, the court finds that plaintiff, not defendant, was entitled to receive the EIP funds earmarked for A.F. under the American Rescue Plan Act of 2021, and the court directs that defendant must pay plaintiff $1,400.00 to reimburse her for the EIP funds he improperly received in that respect.

To recap, the court finds that defendant was entitled to receive, and thus now is entitled to retain, $3,600.00 in EIP monies, comprised of all EIP monies he obtained for both children under the first two stimulus statutes (i.e., the CARES Act and the Consolidated Appropriations Act) and the EIP monies{**86 Misc 3d at 1026} he obtained for D.F. under the third stimulus statute (i.e., the American Rescue Plan Act of 2021). Defendant also is entitled to retain the $3,200.00 in EIP funds he received for his own purposes—that is, by virtue of his status as an individual taxpayer. The court further finds, however, that defendant was not entitled to receive $1,400.00 in EIP funds for A.F. under the American Rescue Plan Act of 2021, the third stimulus statute. Additionally, [*10]the court finds that by claiming A.F. as a dependent in 2021 for CTC purposes when he should not have, defendant prevented plaintiff from obtaining $1,500.00 in tax credits she should have received for tax year 2021, and that defendant therefore must reimburse plaintiff in that amount. Overall, therefore, the court orders defendant to pay plaintiff a total of $2,900.00.

Although not determinative, the court notes its belief that this outcome is consistent with equitable factors. It is undisputed that since the parties' divorce more than 10 years ago, both children have lived only with plaintiff, and the evidence revealed that both children have special needs to which plaintiff has had to attend. Defendant generally has exercised visitation with the children, but he lives several hours away, and the proof indicated that for an over two-year period from 2020-2022, he did not see the children at all. Defendant conceded that throughout the COVID-19 era covered by the subject stimulus packages, plaintiff alone cared for the children. The court's ruling, which permits defendant to retain a portion of the stimulus funds but requires him to reimburse plaintiff in other respects, strikes the proper balance between following the law and the parties' settlement agreement, on the one hand, and recognizing the reality that plaintiff was the children's sole caretaker during the relevant period, on the other hand.

Now, therefore, in accordance with the above, it is hereby ordered that, for the reasons set forth above, defendant S.F. shall pay to plaintiff C.F. the amount of $2,900.00; and it is further ordered that defendant S.F. shall make the aforementioned payment to plaintiff C.F. within 60 days of being served with a copy of this decision and order by counsel for plaintiff.