Earned Income Credit and Custody

[CuriousNYS]

Where would a custodial parent turn or what can they do if they were ordered in a county court to allow noncustodial parent to claim EIC along with form 8332. Clearly if form 8332 is completed it is perfectly legal for noncustodial parent to claim child for child tax credit but EIC is not allowed if residency is not met but for a judge to compel and custodial parent can face jail if they violate an order by judge which is actually breaking federal irs law. Custodial parent attorney does not want to go against judge.

[DoninGA]

The custodial parent cannot allow the noncustodial parent anything when it comes to claiming any type of credit on a tax return.  The Internal Revenue Code of the United States allows or disallows credits and deductions on a federal tax return.

The Internal Revenue Code of the United States cannot be overruled by a judge in a divorce proceeding.

From IRS Publication 501 Dependents, Standard Deduction, and Filing Information page 13 - https://www.irs.gov/pub/irs-pdf/p501.pdf#page=13

Children of divorced or separated parents
(or parents who live apart)

Example—earned income credit. Even if statements (1) through (4) are all true and the custodial parent signs Form 8332 or a substantially similar statement that he or she won’t claim the child as a dependent for 2018, this doesn’t allow the noncustodial parent to claim the child as a qualifying child for the earned income credit. The custodial parent or another taxpayer, if eligible, can claim the child for the earned income credit.

[Critter]

I agree ... the court decree is illegal and needs to be brought to the attention of your attorney AND the courts so it can be corrected.

[macuser_22]

I would not go so far as to call the order illegal.   The poster said that it was a court order, not a divorce decree.  It sounds more like a judges misunderstanding of tax law and an error on the judges part.  That is a judicial error, not a crime.

In addition, there is no way that the non-custodial parent that did not live with the child more than half the year *can* claim the EIC without lying in the tax return which is tax fraud. What would be illegal is if the non-custodial parent actually claimed the child for EIC purposes.

There is also no way to know if that parents earned income and AGI would even fall into the range that would allow EIC even if the child was able to be claimed.   Just having a child does not automatically result in EIC, the income limits must also be met.

[CuriousNYS]

This is an ongoing court proceeding in supreme court for divorce.  The judge made a ruling in a court order (divorce not yet final) allowing noncustodial parent to claim both children in all capacities including child tax credit, head of household, EIC even though they do not reside with noncustodial parent.  I spoke up in court and said that would be EIC fraud.  The court said if I report anything I would be held in contempt and will go to jail!  The noncustodial parent did say the children live with him on his tax filing and received all tax credits including EIC for the two children that do not live with him.  He did this based on the judge saying he is allowd to claim them.  If I report it I go to jail???? How is that legal, I cant report fraud?

[macuser_22]

@CuriousNYS - This is a legal issue, not a tax issue.  We cannot give legal advice.  Talk to your own attorney for advice.

[DoninGA]

If the court order is in writing directing the noncustodial parent to claim EIC on their tax return, then your attorney should contact the United States Attorney's Office for your district who may want to have a conversation with the judge who issued this order.

[Critter]

You can report income tax fraud anonymously :
https://www.irs.gov/compliance/reporting-other-information-to-the-irs

[Jackie010619]

My kids dad is trying to get me in contempt of court for claiming EIC on my daughter whom hasn't lived with him more than 6 months out of the year. He was granted tax deduction. What options do I have?

[Hal_Al]

@Jackie010619  What's the wording on the court order?  Although a judge cannot legally award EIC to the non-custodial parent, they do it  a lot. If the judge tells you you can't claim the EIC, you might want to obey.

[Jackie010619]

Court order say tax deduction. The judge verbally said EIC. I was told by tax preparers that he can not claim EIC and irs publications 596 pg 14 and the irs themselves

[macuser_22]

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@Jackie010619 wrote:

Court order say tax deduction. The judge verbally said EIC. I was told by tax preparers that he can not claim EIC and irs publications 596 pg 14 and the irs themselves

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The judge is wrong, but judges are often wrong when it comes to tax law.

This is a legal issue and we cannot offer legal advice.  You should talk to an attorney.

[Jackie010619]

Can you give me some attorney's to talk to about this situation in Rockford il

[CuriousNYS]

I have the same situation and I can tell you it is a nightmare.  JUDGES for divorce are state level and CAN NOT OR I SHOULD SAY DO NOT OVERRULE IRS ALTHOUGH THEY FEEL THEY DO.  I have in my divorce decree the same thing however I know the IRS rule.  So I wrote to my congressman who confirmed with IRS the judge does not supercede IRS THEY ARE STATE LEVEL!! However by claiming the children do you risk being held in contempt of a court order.  Now with that said you can file and claim kids by IRS rules and no matter what court order says THE NONCUSTODIAL parent can not claim EIC as they would be filing a claim on a lie as the children do not reside with them.  So I choose to not claim kids because court says I can not but I do also choose to report that I am not claiming kids and that the noncustodial parent may falsely file based on a court order with document that they reside with me, I include health insurance forms and other documents.  In this case the noncustodial parent will most likely get a refund and then have it taken back by the IRS and then also be charged with falsely filing a claim and be unable to claim EIC FOR YEARS! I am not in contempt but he does not benefit and well neither do I but it is not violating an order but also doing what is right by the FEDERAL LAW.  Now if you find such a lawyer to fight this please give them my email mrw1180 at Yahoo as I would love to partake in a national level stance against judges doing this.

[Jackie010619]

The court order only states tax deduction. It would have to be in writing on a court document for him to claim EIC correct?