Non custodial parent claiming

[eng8sqd]

Im claiming my son this year as the non custodial parent using Form 8332.  He did not live with me during the year except for a few nights a month.  If I'm claiming him using the form can I claim him living with me all year ? Or still just claim him and what time was actually spent with me ?

[Hal_Al · Accepted solution]

In the TurboTax interview, you answer zero when asked how many months he lived with you. The amount of time he spent with you only matters when it was more than half the year. 

You can claim him as a dependent and for the child tax credit. But because he did not live with you, he is NOT your qualifying child for the Earned Income Credit, Day Care credit or Head of Household Filing status.

 There is a special rule in the case of divorced & separated (including never married) parents. When the non-custodial parent is claiming the child as a dependent/exemption/child tax credit; the custodial parent is still allowed to claim the same child for Earned Income Credit, Head of Household filing status, and day care credit. This "splitting of the child" is not available to parents who lived together at any time during the last 6 months of the year; then only one of you can claim the child for any tax reasons. The tax benefits may not be split in any other manner.

Note in particular that the non-custodial parent can never claim the Earned Income Credit, Head of Household filing status or the day care credit, based on that child, even when the custodial parent has released the exemption to him.

You should let the other parent know that she can still claim him for the Earned Income Credit, Head of Household filing status and the day care credit, if she otherwise qualifies.

Ref: http://www.irs.gov/publications/p17/ch03.html#en_US_2014_publink1000170897

The custodial parent has first priority on claiming the children on her taxes; regardless of the amount of support provided by the non-custodial parent. The non-custodial parent can only claim the child as a dependent if the custodial parent gives permission (on form 8332) or if it's spelled out in a pre 2009 divorce decree. Even if a divorce decree, dated after 2008, gives the non-custodial parent the right to claim the child, he must still get form 8332 from the custodial parent. A properly worded decree should require her to provide that form.

[eng8sqd]

Thanks.  Makes sense.  Appreciate the help.

[Taxphobia]

what if the custodial parent gives permission to the non custodial to claim child but the child is still the qualifying child of custodial but the custodial parent doesn't qualify for EIC based on income, can the non custodial parent take the EIC?

[Hal_Al]

No. In that case,nobody gets to claim EIC based on that child.

[Taxphobia]

So if the non custodial already filed taxes (she is only allowed to claim the child because the court docs say she has him 50.01% which wasn't what really happened this last year) she still thinks she had him more, hence why she went ahead and filed, but I have proof she didn't and I never gave her a form 8332, therefore, she has made an error correct? and when I turn in my taxes and the 8332 they will look at her taxes and take money back because she claimed him for her EIC when technically I had the child more nights despite the court document. the IRS only cares about the 8332 and the TRUTH about how many nights the child was with each parent, not the court document, correct? I am scared to even file my taxes as custodial and include my child because I feel as though I am opening a huge can of worms and my ex will now owe thousands of dollars back.

[Hal_Al]

You may be right and the IRS may rule in your favor. But if your proof is not substantial, then the IRS may rely on the court document. In addition, you risk contempt of court rulings by the judge. Like you said "opening a huge can of worms". But since there's money on the table, you could try negotiating with her.

Here's how the IRS procedure works: If someone else claimed your child inappropriately, and if they file first, your return will be rejected if e-filed. You would then need to file a return on paper, claiming the child as  appropriate. The IRS will process your return and send you your refund, in the normal time. Shortly (up to a year) thereafter, you'll receive a letter from the IRS, stating that your child was claimed on another return. It will tell you that if you made a mistake to file an amended return and if you didn't make a mistake to do nothing. The other party will get the same letter you did. If one of you doesn't file an amended return, unclaiming the child, the next letter, from the IRS, will require you to provide proof. Be sure to reply in a timely manner.
Winner gets the tax benefits; loser gets to pay the IRS back with penalties and interest.  The custodial parent almost always wins. The non-custodial parent can only claim the child as a dependent if the custodial parent gives permission (on form 8332) or if it's spelled out in a pre 2009 divorce decree.   
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