Question

My ex and I are taking turns claiming my son and this is not my year to claim. My refund is so much smaller! Am I missing something?

Forum|Forum|6 years ago
March 28, 2020
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TurboTax Deluxe Online

Employee

Are you the custodial parent? Do you have an agreement with the other parent to allow the other parent to claim them--due to divorce or that you live apart and share custody? Did one of you sign a Form 8332?

If there is a signed 8332 then the custodial parent retains the right to file as Head of Household, get earned income credit and the childcare credit + education credits if the child is a full-time college student. The non-custodial parent gets the child tax credit for children under the age of 17.

As far as the IRS is concerned, the custodial parent is the one with whom the child spent the most nights during the tax year--at least 183 nights.

**Disclaimer: Every effort has been made to offer the most correct information possible. The poster disclaims any legal responsibility for the accuracy of the information that is contained in this post.**

D

dgabrahamsAuthor

We have an agreement that we will switch off who gets to claim him (he is 12) as a dependent on their taxes. We equally share him. I called Turbo Tax and was at first told that the other parent and I could both claim HOH in this situation even though only one of claims him as a dependent. I called again to ask a different question and was told that in fact only one of us can claim HOH (and that would be the person who claims him as a dependent.) My understanding is that this means I also cannot claim the child tax credit this year.

macuser_22

Employee

You cannot both claim HOH. HOH required that the child physically lived with the parent *more* than half the tax year. It is impossible for a child to live with both parents *more* than half (183 nights) the year.

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 legal 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 so the child cannot be claimed by either parent). And yes they are that picky.

See Custodial parent and noncustodial parent in Pub 501

https://www.irs.gov/publications/p501#en_US_2018_publink1000220906

Only the Custodial parent can claim: (Child would be listed as non-dependent EIC & CC only)
-Head of Household
-The Earned Income Credit
-The Child and Dependent Care Credit
-The Health Coverage Tax Credit

The non custodial parent can only claim: (Child would be listed as dependent)
- The child as a dependent
- The Child Tax Credit or credit for other dependents

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.

**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.**