I have 2 children with a woman i never married. There is a custody agreement which she has "custody" and there's no regard to who can claim dependents on their taxes.

Forum|Forum|7 years ago
June 5, 2019
6 replies
29 views

My son lives with me 100% of the time, except for visits to her. There is nothing in the custody agreement regarding dependent filing situations. I figured she could file and claim him because she has legal custody. In such a situation can I claim head of household and use my son as the qualifying person? If i can is there anything that i must document or send to the irs?

Best answer by macuser_22

Legal custody and tax custody are two totally different things. Only the parent that the child physically lived with more than half the year can claim the child or release the child's exemption to the other parent with a signed 8332 form if they desire to do so or are compelled to by a court order.

Per the IRS rules:
Who can claim the exemption and credits depends on who is the custodial parent. (By the IRS definition of custodial parent for tax purposes - this is not the same as the legal custody that a court might grant.).

The test that the IRS uses to determine the custodial parent is where the child lived for more than 1/2 (or greater part) of the year. The IRS will go so far as to require counting the nights spend in each household - that person is the custodial parent for tax purposes (if exactly equal and more than 183 days - The custodial parent is the parent with the highest AGI, if less than 183 days then neither parent has custody so the child cannot be claimed by either parent). And yes they are that picky.

See Custodial parent and noncustodial parent under the residency test in Pub 17

https://www.irs.gov/publications/p17#en_US_2017_publink1000170899

Only the Custodial parent can claim: (Child would be listed as non-dependent EIC & CC only)
-Head of Household
-Earned Income Credit
-Child Care Credit

The non custodial parent can only claim: (Child would be listed as dependent)
-The Exemption
-The Child Tax Credit

But only if specifically specified in a pre-2009 divorce decree, separation agreement or the custodial spouse releases the exemption with a signed 8332 form - after 2009 the IRS only accepts a signed 8332 form that must be attached to the non-custodial parents tax return.

C

cschroder67Author

Level 2

additionally, should i do amended returns for the past few years in which i claimed single?

C

cschroder67Author

Level 2

will there be any consequences to her if I do use him as a qualifying person for head of household?

C

cschroder67Author

Level 2

also should i do amended returns for the past few years, i have always claimed single

Carl

Level 11

If you qualify to file HEad of Household, then that's what you should be claiming. It's a higher standard deduction. You can only amend a tax return for the current tax year and three years back. Note that an amended return can not be e-filed. The IRS says so. You have to print, sign and mail an amended return to the IRS. Mail each year in a physically separate envelope too. Amended returns take anywhere from 4-8 weeks to process, and sometimes longer.
Read the information at <a rel="nofollow" target="_blank" href="https://turbotax.intuit.com/tax-tips/family/guide-to-filing-taxes-as-head-of-household/L4Nx6DYu9">https://turbotax.intuit.com/tax-tips/family/guide-to-filing-taxes-as-head-of-household/L4Nx6DYu9</a> to see if you qualify to file HOH not only for this year, but for past years up to 3 years back.

macuser_22

Answer

Alumni - Champ

Legal custody and tax custody are two totally different things. Only the parent that the child physically lived with more than half the year can claim the child or release the child's exemption to the other parent with a signed 8332 form if they desire to do so or are compelled to by a court order.

Per the IRS rules:
Who can claim the exemption and credits depends on who is the custodial parent. (By the IRS definition of custodial parent for tax purposes - this is not the same as the legal custody that a court might grant.).

The test that the IRS uses to determine the custodial parent is where the child lived for more than 1/2 (or greater part) of the year. The IRS will go so far as to require counting the nights spend in each household - that person is the custodial parent for tax purposes (if exactly equal and more than 183 days - The custodial parent is the parent with the highest AGI, if less than 183 days then neither parent has custody so the child cannot be claimed by either parent). And yes they are that picky.

See Custodial parent and noncustodial parent under the residency test in Pub 17

https://www.irs.gov/publications/p17#en_US_2017_publink1000170899

Only the Custodial parent can claim: (Child would be listed as non-dependent EIC & CC only)
-Head of Household
-Earned Income Credit
-Child Care Credit

The non custodial parent can only claim: (Child would be listed as dependent)
-The Exemption
-The Child Tax Credit

But only if specifically specified in a pre-2009 divorce decree, separation agreement or the custodial spouse releases the exemption with a signed 8332 form - after 2009 the IRS only accepts a signed 8332 form that must be attached to the non-custodial parents tax return.

**Disclaimer: This post is for discussion purposes only and is NOT tax advice. The author takes no responsibility for the accuracy of any information in this post.**

C

cschroder67Author

Level 2

so if i claim him as my qualifying person for head of household, i must give her a form 8332, and she will lose the earned income credit usually associated with claiming him a her dependent?

Carl

Level 11

This IRS rules apply, regardless of what any custody agreement you may or may not have may say. Use the IRS tool at https://www.irs.gov/help/ita/whom-may-i-claim-as-a-dependent to see if you are the one legally entitled to claim them.

Basically, things dealing with divorce, separation and custody are handled by a judge below that of a federal judge. So regardless of what that lower judge may say, they can not over ride or negate the federal tax rules on this.