Claiming dependents

[wemmerich85]

My girlfriend and I have lived together for about 5 years. Her kids and our son live with me and I support them financially. They do go to their other dad's every other weekend. I have them the majority of the time and provide well more than 50% of their financial support.

She works but makes a third of what I do.

We are splitting up and this is becoming a point of contention. Am I within my rights to claim them as dependents given the above info?

[xmasbaby0]

You cannot claim your GF's children since they did not live with you the whole year----they spend some of their time with their other parent.   Your GF can claim them if she is their custodial parent.    You can claim your own bio-child as a dependent and file as Head of Household by claiming him as a dependent.  You may receive child-related credits for that child only, such as the child tax credit or earned income credit or the stimulus payments (or recovery rebate credit).   

If your GF has more than $4300 of income (not counting Social Security) you cannot claim her as a dependent.

Your GS's children cannot be your qualifying children, since they are not related to YOU.   They cannot be your qualifying relatives, since they did not live with you the whole year.  They lived part of the year with their other parent.

Here are the rules for claiming dependents:

WHO CAN I CLAIM AS A DEPENDENT?

You can claim a child, relative, friend, or fiancé (etc.) as a dependent on your 2021 taxes as long as they meet the following requirements:

Qualifying child

• They're related to you.
• They aren't claimed as a dependent by someone else.
• They're a U.S. citizen, resident alien, national, or a Canadian or Mexican resident.
• They aren’t filing a joint return with their spouse.
• They're under the age of 19 (or 24 for full-time students).
• No age limit for permanently and totally disabled children.
• They lived with you for more than half the year (exceptions apply).
• They didn't provide more than half of their own support for the year.

Qualifying relative

• They don't have to be related to you (despite the name).
• They aren't claimed as a dependent by someone else.
• They're a U.S. citizen, resident alien, national, or a Canadian or Mexican resident.
• They aren’t filing a joint return with their spouse.
• They lived with you the entire year (exceptions apply).
• They made less than $4,300 in 2021.
• You provided more than half of their financial support.

When you add someone as a dependent, we'll ask a series of questions to make sure you can claim them. There may be other tax benefits you can get when you claim a dependent.

Related Information:

• What does "financially support another person" mean?
• What is a "qualifying person" for Head of Household?
• Does a dependent for 2021 have to live with me?
• Do I qualify for Head of Household in 2021?
• Can I claim myself or my spouse as a dependent?

IRS interview to help determine who can be claimed:

https://www.irs.gov/help/ita/who-can-i-claim-as-a-dependent

https://ttlc.intuit.com/questions/3113432-who-can-i-claim-as-my-dependent  

[Opus 17]

There are several reasons you can't claim the kids.  They must live with you as a member of your household for the whole year.  You can ignore temporary absences like a sleepover with friends, but you can't ignore the nights they live with their father, because they are also part of his household, so they don't live with you all year.  

Also, because you aren't related, you can't claim the children if someone who is related who is also a taxpayer, could claim them.  Their mother is a "taxpayer" for this purpose if her taxable income is more than $12,550, or if her income is less but she files a tax return to claim any other credit or benefit.  And she can claim the children if they lived with her more than half the nights of the year.  So if she is a taxpayer, you can't claim the children even if the lived in your home all 365 days of the year.  

Your partner will likely be able to claim earned income credit by claiming the children as dependents, although she can't use head of household status.. and might not qualify for the full child tax credit (depending on her income). 

[Hal_Al]

Q. Am I within my rights to claim them as dependents given the above info?

A. No.

You cannot claim your GF's children because they are not related and did not live with you all year.  As others have described there are times when you can claim them, but not as qualifying children for the EIC and Child tax credit .  Even in the rare case when you can claim them, you can only  claim the (non refundable) $500 other dependent credit.

Since you are splitiing up, you cannot even claim your own child, since he/she will be living with the mother more time than he lives with you (she's the custodial parent).  She can release the dependent (and the child tax credit, but not the EIC) to you by signing and giving you IRS form 8332. https://www.irs.gov/pub/irs-pdf/f8332.pdf

*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 dependency to him.

 So, it's good idea to let the other parent know that you will be claiming those items, as many first time divorced parents are not aware of this rule and may try to claim those items, which will cause the IRS to send out letters.

Ref: https://www.irs.gov/publications/p17#en_US_2017_publink1000170897

Scroll down to "Children of divorced or separated parents (or parents who live apart)"

[Opus 17]

"her kids"

You can never claim them under the circumstances you list.  Only she can claim them as dependents, or the father (but only if she signs a release).

"our son"

For 2022, since the son lived with you more than half the year and with the mother more than half the year (because you all lived together), either one of you can claim the child and you can decide between yourselves who will claim the child.  If you can't come to an agreement, the IRS will award the dependent to whichever parent had actual physical custody the greater number of nights during the year (tiebreaker rules).

For 2023 and beyond, the only parent with the automatic right to claim the child is the parent where the child lives more than half the nights of the year.  The IRS goes by actual physical living arrangements, not court-ordered custody.  If you are not the parent where the child lived more than half the nights of the year, you can't claim the child unless the parent with custody gives you a signed release form.  

[Mike9241]

I doubt that you can claim her even if her income was below the threshold because you are apparently breaking up and won't be living together for the whole year.

However, should you meet all the tests for claiming her, she can't claim her children. under IRC 152(b)(1) a taxpayer can not claim anyone as a dependent if they themselves can be claimed as a dependent. 

as to the kids spending time with their father reg 1.152-1(b) says in part

The taxpayer and dependent will be considered as occupying the household for such entire taxable year notwithstanding temporary absences from the household due to special circumstances. A nonpermanent failure to occupy the common abode by reason of illness, education, business, vacation, military service, or a custody agreement under which the dependent is absent for less than six months in the taxable year of the taxpayer, shall be considered temporary absence due to special circumstances.

what this all means. if she earns over $4300 or leaves the household during the tax year you can not claim her.   to her, her own children are qualifying children. if a person is a qualifying child that child can't be anyone else's qualifying relative. even if every test is met

by the way, the rules haven't changed over the last 5 years so if you claimed her children in the past. there could be issued if she were to go back and file amended returns for the open years