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?
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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.
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.
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.
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