Earned Income Credit

[Blink13]

What is the name of your state (only U.S. law)?

 

[LdiJ]

Try again without using the preview feature. It eats posts.

 

[Blink13]

Try again without using the preview feature. It eats posts.

Thanks!

State: New York

Our CS Order states, "Parties further agree to claim the child on their respective taxes alternate years, respondent may claim the child on odd years, and the petitioner on even years."


I used a new accountant this year and he told me that regardless of the court order I still get the earned income credit for our son every year because he lives with me more than 50%. His father could only claim him as a dependent and be considered head of household for our son in his years to claim.

In order to get the earn income credit you have to check the box verifying the child lives with you more than 50%, and the court order does not give him permission to lie on the tax form...

... is this true?

Of course, this is an accountant not an attorney who advise me.
Thank you.

 

[LdiJ]

Thanks!

State: New York

Our CS Order states, "Parties further agree to claim the child on their respective taxes alternate years, respondent may claim the child on odd years, and the petitioner on even years."


I used a new accountant this year and he told me that regardless of the court order I still get the earned income credit for our son every year because he lives with me more than 50%. His father could only claim him as a dependent and be considered head of household for our son in his years to claim.

In order to get the earn income credit you have to check the box verifying the child lives with you more than 50%, and the court order does not give him permission to lie on the tax form...

... is this true?

Of course, this is an accountant not an attorney who advise me.
Thank you.

Well, you got it slightly wrong...but its substantially correct.

Per federal law only the custodial parent (defined by the IRS as the parent with whom the child lives more than 50% of the time) is allowed to claim head of household status, earned income credit, and daycare credits. The custodial parent may claim these even in years when the non-custodial parent claims the child's exemption.

The non-custodial parent (defined by the IRS as the parent with whom the child does NOT live more than 50% of the time) may, if a form 8332 has been signed by the custodial parent, claim the child's exemption and child tax credit. The non-custodial parent MAY NOT claim head of household.

The IRS does not care what your court order says, nor does the IRS honor court orders. Nor can a judge force the IRS to honor court orders. All the judge can do is punish you if you do not sign form 8332 on the non-custodial parent's years.

 

[Blink13]

Well, you got it slightly wrong...but its substantially correct.

Per federal law only the custodial parent (defined by the IRS as the parent with whom the child lives more than 50% of the time) is allowed to claim head of household status, earned income credit, and daycare credits. The custodial parent may claim these even in years when the non-custodial parent claims the child's exemption.

The non-custodial parent (defined by the IRS as the parent with whom the child does NOT live more than 50% of the time) may, if a form 8332 has been signed by the custodial parent, claim the child's exemption and child tax credit. The non-custodial parent MAY NOT claim head of household.

The IRS does not care what your court order says, nor does the IRS honor court orders. Nor can a judge force the IRS to honor court orders. All the judge can do is punish you if you do not sign form 8332 on the non-custodial parent's years.

Thank you for the comprehensive reply!

I have never filed out or been asked to sign form 8332. Our order has been in place since 2005.
Based on the wording of my order I am suppose to fill this form out every other year?

Out of curiosity, what kind of a punishment would a judge impose?

 

[Ohiogal]

Thank you for the comprehensive reply!

I have never filed out or been asked to sign form 8332. Our order has been in place since 2005.
Based on the wording of my order I am suppose to fill this form out every other year?

Out of curiosity, what kind of a punishment would a judge impose?

It would be contempt and contempt COULD be punishable by fines and/or jail time.

 

[Zigner]

It would be contempt and contempt COULD be punishable by fines and/or jail time.

If the OP has never been asked to do this, then no contempt has occurred, as there has been no refusal.

 

[ecmst12]

If you've been allowing NCP to claim the child on the proper years and there hasn't been a conflict, then you're not in contempt. The problem would be if you claimed the child ANYWAY when you're not supposed to...without the form, in a conflict the IRS gives the exemption to you. And THAT would put you in contempt on the years you're not supposed to claim.

 

[CJane]

Thank you for the comprehensive reply!

I have never filed out or been asked to sign form 8332. Our order has been in place since 2005.
Based on the wording of my order I am suppose to fill this form out every other year?

Out of curiosity, what kind of a punishment would a judge impose?

Punishment for what? Your ex filing taxes incorrectly, or not having a form 8332 signed?

You MAY have signed a form 8332 as part of your divorce paperwork, and not remember. I didn't realize I'd signed a blanket one until many moons later when I found it in my files. I just assumed the court order was sufficient. You would NOT have to fill it out every other year - it allows for you to release the exemption for specific years (odd numbered years/even numbered years/etc) or specific children. Mine allows the ex to claim the eldest child every year and me to claim the youngest every year.

 

[Blink13]

If the OP has never been asked to do this, then no contempt has occurred, as there has been no refusal.

I haven't included my son at all on my taxes when it has not been my year to claim him per the court order. I thought that is what the order meant.

Based on the wording of the order am I expected to know that filling out this form is required? I can only get in trouble if I refuse?

I was asking about the punishment out of curiosity. My son's father has been found in contempt 14 times by the court and has never gotten more than a slap on the wrist.

 

[LdiJ]

Punishment for what? Your ex filing taxes incorrectly, or not having a form 8332 signed?

You MAY have signed a form 8332 as part of your divorce paperwork, and not remember. I didn't realize I'd signed a blanket one until many moons later when I found it in my files. I just assumed the court order was sufficient. You would NOT have to fill it out every other year - it allows for you to release the exemption for specific years (odd numbered years/even numbered years/etc) or specific children. Mine allows the ex to claim the eldest child every year and me to claim the youngest every year.

While you can sign for 8332 for multiple years its not something I normally would recommend that people do. While it can be rescinded now it has to be rescinded so far in advance that its a pain in the neck.

So far the IRS has only been spot checking for form 8332, but if the ncp in this case gets spot checked, the cp will need to sign it ASAP or dad will be denied the exemption.

 

[Zigner]

I haven't included my son at all on my taxes when it has not been my year to claim him per the court order. I thought that is what the order meant.

Based on the wording of the order am I expected to know that filling out this form is required? I can only get in trouble if I refuse?

I was asking about the punishment out of curiosity. My son's father has been found in contempt 14 times by the court and has never gotten more than a slap on the wrist.

CJane said it best. You're not going to be found in contempt because you didn't file in the years you weren't supposed to file. It's the other party's responsibility to obtain the form. If dad had asked for it and you refused, then it would be a different story.

 

[Blink13]

Punishment for what? Your ex filing taxes incorrectly, or not having a form 8332 signed?

Not signing the form.

You MAY have signed a form 8332 as part of your divorce paperwork, and not remember. I didn't realize I'd signed a blanket one until many moons later when I found it in my files. I just assumed the court order was sufficient. You would NOT have to fill it out every other year - it allows for you to release the exemption for specific years (odd numbered years/even numbered years/etc) or specific children. Mine allows the ex to claim the eldest child every year and me to claim the youngest every year.

We never got divorced, and I got all the original orders from the court. That form was not included.

Is this something perhaps I signed at the CS Agreement and his attorney has a copy of?

 

[Zigner]

Not signing the form.



We never got divorced, and I got all the original orders from the court. That form was not included.

Is this something perhaps I signed at the CS Agreement and his attorney has a copy of?

If you wish to be proactive, you can download a copy from the IRS web site and send it to him each of the years that he is supposed to claim the child.

 

[Blink13]

I am trying to figure out is exact what relief if any I can get being the custodial parent in the years I do not have the right to the exemption.

Based on the above posts I am thinking I can still put my son on my taxes and just not claim him as a dependent or take the child tax credit and I should be safe?

That would get me an increase earned income credit every year (I only just realized that comes out to a couple thousand refund per year!)