Tax Year Prior to 2020: Can a non custodial parent claim a child without proof that the child resided with them?

[macuser_22]

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.)

[rachelnoel19880]

My daughter lives with me but in our divorce decree I stated that he could claim her even though she does not live with him. Can he still claim her with that?

[macuser_22]

Possible, but only for certain things.

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 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). 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/ch03.html#en_US_2016_publink1000170897

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

See Special rule to divorced or separated parents (or parents who live apart).
https://www.irs.gov/publications/p17/ch03.html#en_US_2016_publink1000170897

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.

Note. If you are filing your return electronically, you must file Form 8332 with Form 8453, (U.S. Individual Income Tax Transmittal) for an IRS e-file Return. See Form 8453 and its instructions for more details. This must be done within 3 days of your e-filed return being accepted by the IRS.

This does NOT mean that the custodial parent can ignore any Decree or court order allowing the non-custodial parent to claim the exemption - they can be required to issue the 8332 form. They could be required by the court to do so or be in contempt.

See “Children of divorced or separated parents or parents who live apart” in IRS Pub 17 for full information.
https://www.irs.gov/publications/p17/ch03.html#en_US_2016_publink1000170897

[Paul221]

This is my question.  If I live with both my kids n their mother. I filed my taxes as head of household. We had a argue and she said she will call irs n say I didn't have permission to claim them. But yet I am supporting all 3. Would she be 8n trouble for falsifying a statement 

[macuser_22]

If you are not married and both live with the child(ren) then you can agree on who claims.  If you cannot agree then the IRS will decide based on the following tie-breaking rules.

In your case it is probably rule #3 that will determine.

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_2018_publink1000220917

[WKins2]

If she files a tax return that claims the dependents on her return as well, the IRS will review both returns and ask for documentation that shows who gets to claim the dependents on their return. Once they determine who can, they will adjust the other return to remove the dependents and any other adjustments that are needed. That parent will need to pay back any refund that came with claiming the dependents.

She can call the IRS, but until a return it is filed, they will not do anything, 

[Jocelyn5]

My baby’s father put our 7 month old baby under his taxes but hasn’t established paternity nor does he help me financially what am I able to do legally but out baby lived with me 

[MarilynG1]

@Jocelyn5 You don't have to provide proof that a dependent lived with you when you file your return.

If you are the Custodial Parent, and the other parent has already Efiled, you will need to mail in your return and claim your child, and any credits associated with your dependent.

You both will get your Refunds; however, eventually the IRS will ask both parents to prove who the child lived with, and the one claiming wrongly will have to pay back whatever refund amount they received by claiming the dependent. 

Click this link for more info on Dependent Claimed Wrongly.

This link has details on Who can I claim as my dependent?

[Jocelyn5]

I had called the the IRS and explained the situation can I able to put in a tax fraud because when i called the irs they said if i wanted to do a tax fraud for illegally claiming a child but will it do any difference since he’s on the birth certificate? Also would my mom have to file for me since i’m 17 with a 7 month old baby? Because he claimed the baby just to get the stimulus check that the baby was supposed to get to keep for himself

[MarilynG1]

@Jocelyn5 If your mom supported you, she can claim you as a dependent.

If she supported you and your child, she can claim you both, but will need to mail her return since the other parent already claimed your child.

Click this link for more info Who can I claim as my dependent?