Cross v. Cross – Case Brief Summary (West Virginia)

In Cross v. Cross, 178 W. Va. 563, 363 S.E.2d 449 (W.Va. 1987), the West Virginia Supreme Court of Appeals reasoned that Congressional silence in the amended code as to whether a state trial court can require a custodial parent to execute a waiver "demonstrates Congress's surpassing indifference to how the exemption is allocated as long as the IRS doesn't have to do the allocating." Id. at 457.

As a consequence, the court concluded that Congress did not intend to forbid state courts from allocating the exemption and that a state court has broad equitable power to order a custodial parent to sign the necessary waiver:

Indeed, under the new [26 U.S.C. § 152(e)] a state court does not have the power to allocate the exemption simply by court order alone (as it could have done before the 1984 Amendment), but it does have the equitable power to require the custodial parent to sign the waiver . . . There is no prohibition -- express or implied -- on a state court's requiring the execution of the waiver, and because the court allocation of dependency exemptions has been custom and usage for decades, it is more reasonable than not to infer that if Congress had intended to forbid state courts from allocating the exemption by requiring the waiver to be signed, Congress would have said so. (Id. at 458.)