Can both my ex-wife and I both claim head of household if I am claiming our child. My child spends just over 50% with the other parent.h her

[ColinW1972]

We meet that.  We have a separation decree in South Carolina and I made sure we met the requirement with my attorney, and several CPA's.  We are solid on the "not married" part.

[macuser_22]

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@ColinW1972 wrote:

On top of this, she already filed as HOH so when I do my taxes and enter my stepsons SSN it gets rejected.  My attorney and CPA are looking into it but I want to make sure.  Not interested in peoples thoughts, but am interested in the rules and how to apply them.

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If the child physically lived with you longer than with the other parent but more than 183 nights in 2020, then according to the rules I posted above, you would be the custodial parent.

BTW: a stepson is treated as yiur child for tax purposes and that relationship does not end with divorce of separation.

If you or a dependent that you are entitled to claim has already been claimed by another taxpayer, your e-filed return will reject since the SSN has already been used (either intentionally or in error such as a mistyped SSN).

Your only recourse is to file a correct tax return, claiming what you are entitled to claim, then print and mail the return.

The IRS will process both returns and pay any refunds. Shortly (within a year) the IRS will mail letters to both taxpayers asking if their tax return was filed in error and suggesting that they amend if they improperly claimed.

If neither taxpayer amends, the IRS will send a second letter asking for each taxpayers proof that they are entitled to the claim.

The IRS will evaluate each taxpayers claim and award the credit to one taxpayer, the other will have to payback any refund received plus interest and possible penalties.

Do not ignore the letters or you will loose.

[ColinW1972]

My lawyer asked for form 8332 to be filled out by her...but she is refusing.  I guess we go to court now.  What about tie breaker rules.  We "both don't qualify (me for the form and her for the finances) so wouldn't that fall to the higher AGI?

[macuser_22]

There are two different rules.    The "separated parents" custody rules I posted above, (as stated at the top) ONLY apply if the parents were separated at all times during the last 6 months of 2020.    If you lived together at any time during the last 6 months then none of those rules, or the 8332 form, apply.

If you BOTH lived with the child more then 183 days in 2020 then the rules below apply.  The tie breaking "highest AGI" only apply if the child lived with both parents the exact same number of days (see below).

Qualifying Child of More Than One Person

[Quote from IRS Publication 501]
Sometimes, a child meets the relationship, age, residency, support, and joint return tests to be a qualifying child of more than one person. Although the child is a qualifying child of each of these persons, only one person can actually treat the child as a qualifying child to take all of the following tax benefits (provided the person is eligible for each benefit).

1. The child tax credit or credit for other dependents.
2. Head of household filing status.
3. The credit for child and dependent care expenses.
4. The exclusion from income for dependent care benefits.
5. The earned income credit.

The other person can’t take any of these benefits based on this qualifying child. In other words, you and the other person can’t agree to divide these tax benefits between you.

Tiebreaker rules.

To determine which person can treat the child as a qualifying child to claim these five tax benefits, the following tiebreaker rules apply.

1 - If only one of the persons is the child's parent, the child is treated as the qualifying child of the parent.

2 - If the parents file a joint return together and can claim the child as a qualifying child, the child is treated as the qualifying child of the parents.

3 - If the parents don't file a joint return together but both parents claim the child as a qualifying child, the IRS will treat the child as the qualifying child of the parent with whom the child lived for the longer period of time during the year. If the child lived with each parent for the same amount of time, the IRS will treat the child as the qualifying child of the parent who had the higher adjusted gross income (AGI) for the year.

4- If no parent can claim the child as a qualifying child, the child is treated as the qualifying child of the person who had the highest AGI for the year.

5 - If a parent can claim the child as a qualifying child but no parent does so claim the child, the child is treated as the qualifying child of the person who had the highest AGI for the year, but only if that person's AGI is higher than the highest AGI of any of the child's parents who can claim the child.

Subject to these tiebreaker rules, you and the other person may be able to choose which of you claims the child as a qualifying child.
[end quote]

https://www.irs.gov/publications/p501#en_US_2020_publink1000220917https://www.irs.gov/publications/p...

[ColinW1972]

So if the qualifying child lived under my HoH approving rules for more of the year, then he would be my qualifying dependent.  Am I getting that right?  Remember 8 months with me paying for him versus 3 months with her paying the bills.

[macuser_22]

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@ColinW1972 wrote:

So if the qualifying child lived under my HoH approving rules for more of the year, then he would be my qualifying dependent.  Am I getting that right?  Remember 8 months with me paying for him versus 3 months with her paying the bills.

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Again those are different rules.    First the child must be your dependent under the rules above,  The you apply the HOH rules.

(All of the rules you need are in the IRS Pub 501.)

Here is the long version with all the HOH rules.

Head of Household is for UNMARRIED taxpayers with a related dependent or married and have not lived with their spouse at anytime during the last 6 months of the tax year AND has a child, stepchild or foster child that can be a dependent.
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You may be able to file as head of household if you meet all the following requirements.

1. You are unmarried or “considered unmarried” on the last day of the year.

2. You paid more than half the cost of keeping up a home for the year.

3. A “qualifying person” lived with you in the home for more than half the year (except for temporary absences such as school) - a parent does not have to live with you to be a qualifying person.

4. If the qualifying person is your qualifying relative, their gross income must have been less than $4,300 (do not include non taxable Social Security) and you provided more than 1/2 of their support

5. You must be able to claim the dependent for the qualifying person except in the case of divorced or separated parents (that lived apart) and the noncustodial parent is claiming the dependent.

A Qualifying person is either:
A qualifying child or a qualifying closely related relative and meets certain other requirements, however if you are considered unmarried it can only be your child, stepchild, or foster child.

See IRS Publication 501 for more information about who is a qualifying person and a worksheet to determine the cost of keeping up a home.

See IRS Pub 501 for more information
https://www.irs.gov/publications/p501#en_US_2020_publink1000220779

[ColinW1972]

Yup....meet all those no issue.  This is where it gets confusing to me.  I meet all that but my ex doesn't.  I just want to file HoH and she can claim him as a dependent..She should as she is the custodial parent in my opinion.  But realistically I qualify as his as his custodial parent anyway.  I was just trying to be fair with his mother.

[macuser_22]

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@ColinW1972 wrote:

Yup....meet all those no issue.  This is where it gets confusing to me.  I meet all that but my ex doesn't.  I just want to file HoH and she can claim him as a dependent..She should as she is the custodial parent in my opinion.  But realistically I qualify as his as his custodial parent anyway.  I was just trying to be fair with his mother.

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Re-read the above.  If you BOTH qualify to claim a dependent then ONLY the parent that meets the rules can do so.

You can always share the refund with the other parent afterwords if you choose to do so.  Tax law does not take sides.