Claiming son for EIC Credit

[tranquility]

The code section regarding qualifying child is at 152(c)(1):
--------------------------------
(c) QUALIFYING CHILD.

For purposes of this section--
(1) IN GENERAL.
The term "qualifying child" means, with respect to any taxpayer for any taxable year, an individual--

(A) who bears a relationship to the taxpayer described in
paragraph (2),

(B) who has the same principal place of abode as the taxpayer
for more than one-half of such taxable year,

(C) who meets the age requirements of paragraph (3), and

(D) who has not provided over one-half of such individual's own support for the calendar year in which the taxable year of the taxpayer begins.
------------------------------
Note (B). Don't talk about what's "fair". This is the tax law. It is an incredibly complex series of rules that, apparently, was poorly understood by your attorney when crafting the custody agreement.

The only relevant question is, did the child have the same principal place of abode for more than 1/2 of the year?

 

[LdiJ]

LdiJ, do you feel that I'm ineligible for the EIC? If so, do you feel this way solely because I do not have my son more than 1/2 of the year? You can think of no Legal and Correct way for me to claim this credit for my son this year, or for that matter as an exemption in any year, since my divorce decree make it not possible for either parent to have my son for more than 1/2 of the year?

I have been a tax professional for more than 20 years. I do extensive continuing education every year.

No, there is no legal or correct way for you to claim EIC for your child, because your child does NOT live with you more than 1/2 of the year.

There are the following items regarding children:

Dependency exemption - May be taken by either parent, with some "rules".
Child tax credit - May be taken by either parent, with some "rules"
Child care credit - May only be taken by the person with whom the child lives more than 1/2 of the year.
EIC - May only be taken by the person with whom the child lives more than 1/2 of the year.
Educational credits (college) - May only be taken by the person who claims the child as a dependent that year, unless the child is no one's dependent in which case they claim those themselves.

Those are the rules. Plain and simple. There is no legal way around the rules.

It is particularly dangerous to break the rules for EIC. If you are caught you are denied claiming EIC for ANY child for a minimum of two further tax years, up to a maximum of ten further tax years.

EIC fraud costs the taxpayers approximately 9 BILLION dollars a year. Believe me, the IRS takes that VERY seriously.

 

[xnayyz]

Thank you tranquility and LdiJ for your candid and insightful responses, I enjoyed reading them. I hope that I'm not misleading as to the intent of my inquiry. I've only recently (within the last couple of weeks) come upon the realization that the EIC wasn't being claimed this year by either parent on behalf of my son. And it's been only hours since it has become apparent to me that the wording in the tax law pertaining to parents of a child in a shared custody 50/50 environment, well... there is no wording. Maybe the tax law was written during a time when society thought that after a divorce, one parent shouldn't be given a chance to be as much of a parent as the other, and maybe because of that thinking, never conceived any idea that maybe one day parents will be given that chance. tranquility , shouldn't it be the ideal goal when possible of every divorce court judge, to give each parent that right, that obligation, that duty? I praise and applaud my lawyer for the carftiness of my custody agreement, it states exactly what it should, that I can proudly be a parent just as much as my EX, without an incredibly complex series of rules and hoops for either of us to jump through. One divorce court attorney... One-Thousand dollars, One EX... tens of thousands of dollars, the countless times since my divorce that I've heard my son say I love you -just because... priceless. Please excuse me if my words seem sarcastic, conceited, gloatful, or anything. They're just the loving words of a proud parent. Yes, I realize that the tax law IS very specific, and as far as being fair goes, you don't have to remind me, tranquility, on how callous and rigid the tax law is, I'm not looking for fair or for any kind of justice here, just insight and advice from people like LdiJ, fairisfair, and yourself. And please don't misunderstand, LdiJ, that I'm trying to knowingly and willingly commit EIC fraud. I'm one of those taxpayers you speak of, and just because I drew unemployement for the first time last year, and my income was nothing to brag about, and I didn't wind up paying an ungodly amount in taxes to our great nation, doesn't mean I havn't paid my fair share during the 20 years prior to last year. I'm just as concerned about the costs of EIC fraud upon our great nation as the next taxpayer, and the IRS Shhh..ould take that VERY seriously. Does my inquiry seem scandalous or malicious in intent? Am I trying to 'get one over on America'? That's hardly the case here. I'm just trying to find a way to legally get as much back in income taxes as I possibly can without trying to find a 'way around the rules'. That's a right of every single working citizen of this country. According to the rules you've both posted, and if my understanding is correct, the current tax law's wording will not allow either parent in a 50/50 custodial agreement to claim the EIC or Child care credit for any number of children... ever! And if, LdiJ, the 'some "rules"' you mention are contingent upon satifying The code section regarding qualifying child 152(c)(1), the wording will not allow any claim to the Dependency exemption, the Child tax, or the Educational credits, as well. Not allowing either parent to ever claim anything can't be the only answer. That's not in the best interest of any child in a shared custody 50/50 envirionment. Maybe, the scope of our conversation is too narrow, and we're overlooking a provision somewhere, some kind of precedence to draw inquiry of??

Please don't misinterpret the tone of my thoughts, I have only respect of your knowledge and gratefuleness to you for your replies.

 

[LdiJ]

The scope of our conversation is not too narrow. The law is what it is.

By "rules" regarding the dependency exemption or the child tax credit, I meant rules that would apply if you both took the exemption and credit the same year.....therefore requiring the IRS to decide who it really belonged to.

 

[tranquility]

Actually, I believe the rules were changed in (or for) 2005 so Congress did have some awareness of modern practices.