Earned Income Credit and Custody

Forum|Forum|6 years ago
September 20, 2019
2 replies
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Where would a custodial parent turn or what can they do if they were ordered in a county court to allow noncustodial parent to claim EIC along with form 8332. Clearly if form 8332 is completed it is perfectly legal for noncustodial parent to claim child for child tax credit but EIC is not allowed if residency is not met but for a judge to compel and custodial parent can face jail if they violate an order by judge which is actually breaking federal irs law. Custodial parent attorney does not want to go against judge.

DoninGA

Employee

The custodial parent cannot allow the noncustodial parent anything when it comes to claiming any type of credit on a tax return. The Internal Revenue Code of the United States allows or disallows credits and deductions on a federal tax return.

The Internal Revenue Code of the United States cannot be overruled by a judge in a divorce proceeding.

From IRS Publication 501 Dependents, Standard Deduction, and Filing Information page 13 - https://www.irs.gov/pub/irs-pdf/p501.pdf#page=13

Children of divorced or separated parents
(or parents who live apart)

Example—earned income credit. Even if statements (1) through (4) are all true and the custodial parent signs Form 8332 or a substantially similar statement that he or she won’t claim the child as a dependent for 2018, this doesn’t allow the noncustodial parent to claim the child as a qualifying child for the earned income credit. The custodial parent or another taxpayer, if eligible, can claim the child for the earned income credit.

Critter

Employee

I agree ... the court decree is illegal and needs to be brought to the attention of your attorney AND the courts so it can be corrected.

macuser_22

Employee

I would not go so far as to call the order illegal. The poster said that it was a court order, not a divorce decree. It sounds more like a judges misunderstanding of tax law and an error on the judges part. That is a judicial error, not a crime.

In addition, there is no way that the non-custodial parent that did not live with the child more than half the year *can* claim the EIC without lying in the tax return which is tax fraud. What would be illegal is if the non-custodial parent actually claimed the child for EIC purposes.

There is also no way to know if that parents earned income and AGI would even fall into the range that would allow EIC even if the child was able to be claimed. Just having a child does not automatically result in EIC, the income limits must also be met.

**Disclaimer: This post is for discussion purposes only and is NOT tax advice. The author takes no responsibility for the accuracy of any information in this post.**

Jackie010619

My kids dad is trying to get me in contempt of court for claiming EIC on my daughter whom hasn't lived with him more than 6 months out of the year. He was granted tax deduction. What options do I have?

Hal_Al

Employee

@Jackie010619 What's the wording on the court order? Although a judge cannot legally award EIC to the non-custodial parent, they do it a lot. If the judge tells you you can't claim the EIC, you might want to obey.

Jackie010619

Court order say tax deduction. The judge verbally said EIC. I was told by tax preparers that he can not claim EIC and irs publications 596 pg 14 and the irs themselves