Can I claim my child for EIC if my ex claims as a dependant?

[ebyson73]

I am trying to get some clarification. When I divorced, it was put in the paperwork that my ex will claim our daughter as a dependent and I will claim my son. We have joint custody we get the kids week on/week off so it is basically equal all year. She makes way over the limit to qualify for EIC regardless of how many kids she claims so doesn't claim EIC at all. I do qualify for EIC, so I am trying to figure out if I can claim both kids for EIC or just the one I claim as a dependent. Her AGI is obviously higher than mine. TurboTax is showing that they both qualify for EIC for me, but I have been told that this is not allowed.

[Rachel_W]

Yes, it is possible for a child to be a "qualifying child" for Earned Income Credit (EIC) purposes, even when you are not claiming them as a Dependent. 

However, one of the qualifications the child must meet is that they lived with you more than half the year.  So if your son and/or daughter did not live with you at least 183 days during the year, they would not be qualifying children for the purposes of EIC.

Check out the TurboTax FAQ below to review all of the qualifications a child must meet for EIC purposes: 

https://ttlc.intuit.com/replies/4835245

[ebyson73]

I just found this on the IRS website, that seem to contradict the above answer. I take it to mean that whoever claims the child as a dependent is the only one who can claim them for any of the included benefits.
"Sometimes a child meets the rules to be a qualifying child of more than one person. If the child is the qualifying child of more than one person, only one person can claim the child as a qualifying child for all of the following tax benefits:
 
EITC,
Dependency exemption for the child,
Child tax credit,
Head of household filing status,
Credit for the child and dependent care expenses, and
Exclusion for dependent care benefits.

he other person(s) cannot take any of the six tax benefits listed above unless he or she has a different qualifying child."

Am I correct in this interpretation or am I missing something? Thanks!

[macuser_22]

@ebyson73 - What you found applies when both parents have physically lived with the child more than half the year, then only one parent can claim the child and all the benefits.

Your situation is the special rules for divorces or separated parents that live apart.


There is no such thing in the Federal tax law as 50/50, split, or joint custody.  The IRS only recognizes physical custody (which parent the child lived with the greater part, but over half, of the tax year.  That parent is the custodial parent; the other parent is the noncustodial parent.)

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

<a rel="nofollow" target="_blank" href="https://www.irs.gov/publications/p17#en_US_2017_publink1000170899">https://www.irs.gov/publications/...>
 
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.