No, you can only claim the expenses that are paid by you.
See the attached chart from IRS Publication 503. There is a rule that allows you to use expenses paid by others for education credits, however that rule does not carry for the child care credit - you can use expenses that you have paid.
No, you can only claim the expenses that are paid by you.
See the attached chart from IRS Publication 503. There is a rule that allows you to use expenses paid by others for education credits, however that rule does not carry for the child care credit - you can use expenses that you have paid.
Thank you, so <a rel="nofollow" target="_blank" href="https://ttlc.intuit.com/questions/3053516-how-do-i-get-the-child-care-credit-for-my-50-of-the-child-care-cost-when-my-ex-already-used-them-for-her-50">https://ttlc.intuit.com/questions/3053516-how-do-i-get-the-child-care-credit-for-my-50-of-the-child-care-cost-when-my-ex-already-used-them-for-her-50</a> which states " But, the custodial parent may count the money paid by the non-custodial parent in calculating the child care credit for herself." is incorrect.
@Hal_Al is very sharp. Let's see if he will link us to the rule he is referencing in this answer.
You won't find it writing, in the IRS pubs. The general rule is that a taxpayer must actually make the payment (as well as be legally liable to pay it) to get the deduction. However, there is a recent tax court ruling that seems to say that you can take the deduction even if he was the one that actually paid it under the theory that his paying the expense is just another form of child support and it was your money that paid for it.
Thanks Hal_Al. That's interesting, but I'm guessing it doesn't apply to me as I am the one paying the child support and 3/4 of the child care. I planned on just claiming my share until I saw your note. Thanks again.
@heeljeff - If you are the one paying for the child care and the child did *not* physically live with you *more* than half the year then this question is moot anyway. The parent that did *not* live with the child can NEVER claim the Child Care Credit reguardless of who pays it.
Child care is "work related". It can only be claimed if the care was necessary so that you (and your spouse if married) could work. Only if the child lived with you more than half the year *and* the care was required so that you could work is it allowed. If you did not live with the child or work at the time that the care was provided then it was not necessary so that you could work and therefore is not allowed.
Your original question that started this discussion was if the *custodial* parent (which under tax law is the parent that does physically live with the child) claim the credit of the non-custodial parent pays part of it - not if the noncustodial parent could claim it which they cannot.
@macuser_22 Yes I'm the custodial parent, thus my question, and I pay child support, a situation that can't be that rare I'd think.
You are paying child support to yourself? That would indeed be rare. Under most circumstances if custody changed after the child support order, the order would be modified to remove it so you don't pay yourself.
No...I pay cs to my kids mom but I am the custodial parent.
Child support is for the children not the parent, why pay child support to someone that the children do not live with or are you saying that you have *legal custody*, but she has *physical* custody.
If that is the case then review the comments above. The IRS and tax laws define custodial parent, for tax purposes, as the parent that the child physically lived with more than half the year - that is not the same a legal custody that a court might award. All of the tax credits are based on physical custody - if the child did not actually live with you, you cannot claim it.
So what if I have the kids 55% of the time..I still pay child support based on the state guidelines
The IRS goes by nights. If you have the children 55% of the nights then that is more then 183 nights and you are the custodial parent for tax purposes. Here are all of the rules dealing with custody with IRS references that you can look up.
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Custodial Parent
These are a paraphrase of the IRS rules for divorced or separated parents that live apart.
[Note: Unless the parents have been separated at all times during the last 6 months of the year, these rules do not apply.]
See “Children of divorced or separated parents or parents who live apart” in IRS Pub 17 for full information.
<a rel="nofollow" target="_blank" href="https://www.irs.gov/publications/p17#en_US_2017_publink1000170897">https://www.irs.gov/publications/p17#en_US_2017_publink1000170897</a>
This assumes that the child is under age 18 (in most states). Once the child becomes an adult (Emancipated child), custody becomes mute and these rules no longer apply.(See examples 5 & 6 in Pub 17 for more information)
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/p17#en_US_2017_publink1000170899</a>
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.
Note. If you are the non-custodial parent filing your return electronically, you must file Form 8332 with Form 8453, (U.S. Individual Income Tax Transmittal) for an IRS e-file Return. See Form 8453 and its instructions for more details. This must be done within 3 days of your e-filed return being accepted by the IRS.
This does NOT mean that the custodial parent can ignore any Decree or court order allowing the non-custodial parent to claim the exemption - they can be required to issue the 8332 form. They could be required by the court to do so or be in contempt.
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Post-1984 and pre-2009 divorce decree or separation agreement. If the divorce decree or separation agreement went into effect after 1984 and before 2009, the noncustodial parent may be able to attach certain pages from the decree or agreement instead of Form 8332. The decree or agreement must state all three of the following.
1. The noncustodial parent can claim the child as a dependent without regard to any condition, such as payment of support.
2. The custodial parent will not claim the child as a dependent for the year.
3.The years for which the noncustodial parent, rather than the custodial parent, can claim the child as a dependent.
The noncustodial parent must attach all of the following pages of the decree or agreement to his or her tax return.
* The cover page (write the other parent's social security number on this page).
* The pages that include all of the information identified in items (1) through (3) above.
* The signature page with the other parent's signature and the date of the agreement.
Post-2008 divorce decree or separation agreement. The noncustodial parent cannot attach pages from the decree or agreement instead of Form 8332 if the decree or agreement went into effect after 2008. The custodial parent must sign either Form 8332 or a similar statement whose only purpose is to release the custodial parent's claim to an exemption for a child, and the noncustodial parent must attach a copy to his or her return. The form or statement must release the custodial parent's claim to the child without any conditions. For example, the release must not depend on the noncustodial parent paying support.
Form 8332 rules for non-custodial parent:
Attach this form or similar statement to your tax return for each year you claim the exemption for your child. You can claim the exemption only if the other dependency tests in your tax return instruction booklet are met.
Note. If you are filing your return electronically, you must file Form 8332 with Form 8453, (U.S. Individual Income Tax Transmittal for an IRS e-file Return). See Form 8453 and its instructions for more details.
This must be done within 3 days of your e-filed return being accepted by the IRS.
<a rel="nofollow" target="_blank" href="http://www.irs.gov/pub/irs-pdf/f8453.pdf">http://www.irs.gov/pub/irs-pdf/f8453.pdf</a>
Hal
Am curious about the tax court ruling. Can you provide a link to where that is found? I have not been able to find anything about this. Thanks.
I did not read through the loooooong post above this, as I got tired of it after the first paragraph. (To much repetition of previous posts in this thread.) But you say "I have custody". Some clarification "may" be needed here as it pertains to your federal taxes.
The IRS has their own rules for who is the custodial parent, that must be followed with no exceptions. Since the IRS is a federal agency, the only legal authority that can over ride the IRS rules is a federal judge. Since a federal judge will never deal with divorce, separation or custody issues, I'm 100% confident in stating that such an over ride will never, ever happen.
What a lower court may have ruled in the way of custody is not recognized or applicable to you for "Federal" tax purposes. The IRS rules apply and that's that, basically.
The IRS has a fairly clear definition of "custodial parent" and "non-custodial parent".
- Custodial parent: The one with whom the child lived for more than 182 nights of the year. If the separation of the parents occurred during the tax year, then it's the parent with whom the child lived the most nights of the year. Temporary absences such as school, summer camp, hospital stays, nights at a friends house, etc., count for the custodial parent, provided the child returns to the same household they left at the end of the temporary absence. NIghts spent at the non-custodial parent's house do not count for the custodial parent. The nights do not have to be consecutive either.
- Non-Custodial parent: The one who does not meet the requirements to be the custodial parent.
WHile the non-custodial parent "may" qualify for the EIC for the child, that's about it. They can't claim the child care credit, or any other credit (other than the EIC if they qualify) that the custodial parent qualifies for. It doesn't matter if the custodial parent actually claims the credit or not either.
Your answer needs correction ... I am sure you meant to indicate CTC not EIC ...
WHile the non-custodial parent "may" qualify for the EIC EIC
The non-custodial parent can NEVER qualify for or claim *either* the dependent care credit OR EIC for the child (they might qualify for EIC on their own without the child). Using a child dependent for both the dependent care credit and EIC require that the child physically lived with the parent for more than half the year.
The only credit that the non-custodial parent can claim is the CTC (child tax credit) and dependent.
Thanks @Critter . Yup, meant to type CTC. Apparently, my fingers were engaged before my brain was in gear. 🙂