Can I claim half of my child daycare even if the other parent is claiming her?

[hmsmith]

Hal_Al - Can you please tell me what tax ruling you refer to when you say the custodial parent can claim daycare expenses paid by the noncustodial parent? I understand my ex is not supposed to claim and daycare expenses but I just need SOMETHING from the IRS/Law/Rulings stating that I can claim expenses he paid.

[Hal_Al]

The theory is that daycare is just another form of child support. The child support money you receive and they pay out is considered you spending your money. You can "google it" yourself.

(Dead link removed 4-1-20 Ohio bar association opinion supporting that theory)

[kandisfay]

I know we only split the last 6 months of the year. I allowed him to claim the kids and I was custodial and only claimed the daycare. In which I paid for. If you look up on the it's website it explains it for divorce and separated parents alike

[lepard1980]

So I am getting confused, we have 50/50 custody so the agreement was to claim our son every other year. So on the years that I would claim him what can I claim so that my ex can claim for payment of half the daycare? would he put it in as child support? ( he doesn't pay support at all currently) if so then what do I put on my side since I just put all the daycare payment in as you said above.

[TomD8]

Only the CUSTODIAL parent (which the IRS defines as the parent with whom the child spent the greater numbers of nights during the tax year) can claim the Child and Dependent Care Credit.  The Child and Dependent Care Credit cannot be split.

[lepard1980]

I know but we literally split the year. that's why we do every other year. so on the year that I would be the "custodial Parent" in terms of doing taxes the non custodial parent can't do anything they get screwed out of money they paid?

[macuser_22]

@lepard1980   said:  "...we literally split the year..."  If *exactally* split even then each parent would have had the child 182.5 days (365/2) which means that *neither* parent had the child *more* than 1/2 the year (at least 183 nights) so *nobody* can claim the child at all.   It is highly unlikely that it would be exactally equal for both parents.

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.

For these rules  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/...>

[lepard1980]

OK  this has not been helpful lol..... we don't care who has our child per day a year. that's why we switch who's return has him as a dependent. I will consult someone in person or split our returns like we did this year. Tax laws need to update, I mean more than the country is probably divorce with kids.

[lepard1980]

"But, the custodial parent may count the money paid by the non-custodial parent in calculating the child care credit for herself. 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. "

This is what is says above, so if the custodial is claiming the money that the non-custodial parent paid is says in theory that is would be considered child support. hence why I asked if they would claim it as child support.

[TomD8]

Child support payments are never deductible.
The non-custodial (by IRS definition) parent CANNOT claim the Child and Dependent Care Credit, either in whole or in part.

"we don't care who has our child per day a year"
No, but the IRS does care - because that's how they determine which parent is the CUSTODIAL parent.

[macuser_22]

"...hence why I asked if they would claim it as child support..."

Child support is never claimed by anybody on a tax return.   Child support is considered to be the money of the custodial parent so it is treated as if the custodial parent paid the money.

[MargaretL1]

Hello,

You cannot claim Child and Dependent care credit if the child is not your dependent.  The child must be your dependent in order for you to claim this credit.

Please click here here for more details.

I hope you have found this information helpful.

[Hal_Al]

See above, for an exception.

[trusty]

Child of divorced or separated parents or parents living apart.   Even if you cannot claim your child as a dependent, he or she is treated as your qualifying person if:
The child was under age 13 or was not physically or mentally able to care for himself or herself,

The child received over half of his or her support during the calendar year from one or both parents who are divorced or legally separated under a decree of divorce or separate maintenance, are separated under a written separation agreement, or lived apart at all times during the last 6 months of the calendar year,

The child was in the custody of one or both parents for more than half the year, and

You were the child's custodial parent.

  The custodial parent is the parent with whom the child lived for the greater number of nights in 2013. If the child was with each parent for an equal number of nights, the custodial parent is the parent with the higher adjusted gross income. For details and an exception for a parent who works at night, see Publication 501.

The final paragragh is very important for those that share equal time with the child!

[Hal_Al]

No, it's not important at all, because it's nearly impossible for time to be shared exactly equally.