My husband is incarcerated. We have a 5 year old daughter. I pay for daycare and for school. Am i able to receive credit for that with him having no income due to priso

[ckaiser123-]

he has no income due to being in prison for life.  i have like $5k in daycare and school fees that I have paid for the year 2022.  Is there a way to get that credit?

[RobertB4444]

If you file as married filing jointly then no, you can't take the credit for child and dependent care.  In a joint return both spouses must work in order to qualify for the credit with a few exceptions.  Being incarcerated is not one of the exceptions.

However, if you have been living alone since before July 1 of 2022 (or the whole second half of the year) then you qualify to file as head-of-household.  Your spouse, since he has no income, would not file a return at all.  You would completely remove him from the tax return.  As head-of-household you qualify for a higher standard deduction as well as the childcare expenses deduction.

If your spouse has income in a future year he would file a separate return as married-filing-separately.

If you didn't qualify in 2022 because he didn't begin his sentence until after July 1st then at least you will qualify for next year.  

@ckaiser123- 

[ckaiser123-]

Ok, so I just need to mark Single and do head of household? He’s been incarcerated since 2020. 

[ckaiser123-]

Ok, so I just need to mark Single and do head of household? He’s been incarcerated since 2020. 

[ckaiser123-]

Or do I file married jointly even tho he’s been in prison for 3 years? I did it both ways and I get more money back doing it as married jointly. 

[Opus 17]

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@ckaiser123- wrote:

Or do I file married jointly even tho he’s been in prison for 3 years? I did it both ways and I get more money back doing it as married jointly. 

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OK, so the problem is the dependent care credit is not allowed when married filing separately.  The first expert misunderstood your situation.

You are always allowed to file jointly if you are legally married, as long as your spouse agrees, even if one spouse doesn't work for whatever reason.  If you are filing on paper, you would need your spouse's signature, but you can electronically sign for them as long as they agree that you can file jointly.

Joint filing almost always results in lower tax owed than filing separately.  

Head of household is tricky, it is designed for single parents, but can sometimes apply to married persons who are living apart but not legally separated.  The problem is that incarceration is usually considered "temporary" and you are still considered to "live with" your spouse for tax purposes, which means you can't file HOH.  However, I would say that in the case of a life sentence, there is not much the IRS can object to if you file head of household on the grounds that your separate living arrangements are not "temporary."

I think you are fine filing jointly if your spouse cooperates, or HOH if they won't cooperate. 

[DMarkM1]

Yes, you are on the right track.  Put in the married filing jointly numbers that will not include the Dependent Care Credit and compare that to your return entries as head of household that includes the Dependent Care Credit.  File the return with the better outcome.