Claiming Child on Taxes

[AverageJoeMama]

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

I wasn't sure if I should post this here or in the Tax forum. Thanks in advance for your input!

I have a daughter that was 17 on December 31, 2015. The parenting plan states that I can claim her on my taxes. However, she did move in with her Dad this year, and she lived with him more than 6 months of the year.

Do I still get to claim her, because of the parenting plan? Or does my ex get to claim her, because he meets the residency test? Which "test" trumps the other?

Also, what happens if he claims her first? Will the burden of proof be on me to produce the parenting plan, or will the fact that she didn't live with me this year negate the parenting plan?

 

[davew128]

The parent who is greater than 50% custodial is by default considered the one to claim the child. The parenting plan is irrelevant to the IRS.

 

[AverageJoeMama]

So, just to clarify, even if a judge gave me the exemption in our divorce decree, because my daughter moved in with her dad, that is voided? Does that apply for claiming her as a dependent, EIC, or both?

 

[TheGeekess]

So, just to clarify, even if a judge gave me the exemption in our divorce decree, because my daughter moved in with her dad, that is voided? Does that apply for claiming her as a dependent, EIC, or both?

If you both claim daughter, the IRS will ask for proof of who she lived with. If one parent lies to claim EIC, the IRS has very heavy penalties for that stunt. The IRS really doesn't give a hoot what your court orders say; all the proof they need they will ask for.

In other words, you are NOT eligible to use your daughter to claim HoH or EIC.

 

[AverageJoeMama]

If you both claim daughter, the IRS will ask for proof of who she lived with. If one parent lies to claim EIC, the IRS has very heavy penalties for that stunt. The IRS really doesn't give a hoot what your court orders say; all the proof they need they will ask for.

In other words, you are NOT eligible to use your daughter to claim HoH or EIC.

Thank you. What proof would they be asking for? We never changed the visitation order, so on paper, she still lives with me every other week. I guess what I am asking is how much or how little do they take for documentation?

 

[FlyingRon]

Your state court can't change federal law. The visitation order will not either. The proof is who had the most nights in REALITY. The only out the IRS allows is for one parent to designate the other to take the exemption (only the exemption not counting it for EITC and as pointed out, there is special focus on catching EITC cheats). However, it is incumbent on you (possibly with the assistance the state court ) to obtain that authorization from the parent legally (under the federal tax law) to the exemption.

 

[AverageJoeMama]

Your state court can't change federal law. The visitation order will not either. The proof is who had the most nights in REALITY. The only out the IRS allows is for one parent to designate the other to take the exemption (only the exemption not counting it for EITC and as pointed out, there is special focus on catching EITC cheats). However, it is incumbent on you (possibly with the assistance the state court ) to obtain that authorization from the parent legally (under the federal tax law) to the exemption.

So even though the parenting plan states I get to claim her on my taxes, I still have to ask my ex to sign an 8332 form, even though per the parenting plan I am listed as the custodial parent?

Is there a difference between claiming her as a dependent vs EIC? Can one parent do one and the other parent have the other, perhaps?

 

[TheGeekess]

So even though the parenting plan states I get to claim her on my taxes, I still have to ask my ex to sign an 8332 form, even though per the parenting plan I am listed as the custodial parent?

Is there a difference between claiming her as a dependent vs EIC? Can one parent do one and the other parent have the other, perhaps?

Only the parent who has her more than 50% of the time can claim EIC/HoH. Period. End of.

 

[AverageJoeMama]

Only the parent who has her more than 50% of the time can claim EIC/HoH. Period. End of.

Totally understand! Thank you!

What I don't really understand, and I am sure this question is more for the Tax forum- but what is the difference between claiming a child as a dependent and claiming a child for EIC? I've been playing around on Turbo Tax and it let's me choose one or the other (or both) but I won't. I'm just asking.

 

[stellas]

Totally understand! Thank you!

What I don't really understand, and I am sure this question is more for the Tax forum- but what is the difference between claiming a child as a dependent and claiming a child for EIC? I've been playing around on Turbo Tax and it let's me choose one or the other (or both) but I won't. I'm just asking.

I do this with my ex. He makes too much to claim the EIC, so I always claim it, even if it's not my year to claim my child. My accountant actually recommended that so that's what we do.

To your first question, it happened to me one year that my ex claimed my daughter "first" and then I did. They didn't ask for proof. They basically sent a letter saying "We're holding BOTH your returns till you work it out". I would suspect that if you pressed the issue beyond that they may get more involved but it seems like their first line of defense is to just push it back on you.

Honestly, we've had years where our child happens to spend a fraction more of the year at one parent or the others (usually with me) and the IRS really doesn't care as long as you both agree and submit legit returns. If you have an amicable relationship, maybe you can claim her if it works out to getting a better return and then give him a portion? If its not amicable, and he has claimed her, AND he makes too much to claim the EIC, at least you can claim that.


If you agree on who claims her, the IRS isn't going to butt in and say "Oh yeah well the other one had the kid more time so change it!" lol

If you DONT agree, your ex can probably make a case for getting the return. You could make a case in family court to have him give you a portion of that money.
Good luck!

 

[LdiJ]

Totally understand! Thank you!

What I don't really understand, and I am sure this question is more for the Tax forum- but what is the difference between claiming a child as a dependent and claiming a child for EIC? I've been playing around on Turbo Tax and it let's me choose one or the other (or both) but I won't. I'm just asking.

I am going to clarify things for you a little bit.

There are multiple tax attributes that can be claimed for children.

The dependency exemption - Goes to the custodial parent unless the custodial parent gives form 8332 to the NCP. This goes by the IRS's definition of custodial, not by court orders.

The child tax credit - Same as above but does not apply in your case since the child is 17.

Earned income credit - Can only be claimed by the custodial parent. The non-custodial parent may NEVER claim this credit. The custodial parent may claim this even if the non-custodial parent claims the dependency exemption and the child tax credit.

Head of Household - Same as EIC.

Additional child tax credit - Same as the child tax credit.

Education Credits - Same as the dependency exemption.

Daycare Credits - Same as EIC.

Additional clarification - While the others are correct that the IRS will not honor court orders and that everything goes by their definition of custodial parent, state court orders do require the custodial parent to do whatever is necessary (signing form 8332) so that the other parent can get whatever tax benefits that the court orders cover. So, if its your year, and he claims her for the dependency exemption (the only thing that would apply in your case since you would not qualify for anything else) you do have the right to take him to court for contempt. However please note that if you are lower income, the dependency exemption may be worth little to nothing to you.

I hope that helped.

 

[stellas]

I am going to clarify things for you a little bit.

There are multiple tax attributes that can be claimed for children.

The dependency exemption - Goes to the custodial parent unless the custodial parent gives form 8332 to the NCP. This goes by the IRS's definition of custodial, not by court orders.


.

Doesn't this say they can't even with the 8332?

https://www.irs.gov/Help-&-Resources/Tools-&-FAQs/FAQs-for-Individuals/Frequently-Asked-Tax-Questions-&-Answers/Earned-Income-Tax-Credit/Qualifying-Child-Rules/Qualifying-Child-Rules-3

 

[Zigner]

Doesn't this say they can't even with the 8332?

https://www.irs.gov/Help-&-Resources/Tools-&-FAQs/FAQs-for-Individuals/Frequently-Asked-Tax-Questions-&-Answers/Earned-Income-Tax-Credit/Qualifying-Child-Rules/Qualifying-Child-Rules-3

That is for the Earned Income Credit, not the dependency exemption.

 

[LdiJ]

Doesn't this say they can't even with the 8332?

https://www.irs.gov/Help-&-Resources/Tools-&-FAQs/FAQs-for-Individuals/Frequently-Asked-Tax-Questions-&-Answers/Earned-Income-Tax-Credit/Qualifying-Child-Rules/Qualifying-Child-Rules-3

That is about EIC, and I said that EIC can only be claimed by the custodial parent.

Or I should have just ditto'ed Zig.

 

[AverageJoeMama]

That is about EIC, and I said that EIC can only be claimed by the custodial parent.

Or I should have just ditto'ed Zig.

And according to IRS rules, the custodial parent is the one who had the most overnights- NOT who is designated as custodial parent by the courts.

So, does this mean that all those years that we did every other year, because that is what the court order stated, I could have claimed her anyway because I met the IRS rules for claiming a dependent and IRS rules trump state law?

I wish I was grasping all of this quicker but I'm not.

I have remarried. My ex has remarried. He has small children, I do not. This year our daughter was with him more than half the year. About 220 days, give or take.

I understand about not claiming her for EIC, because of the residential time. It's the other that confuses me.

I am listed as custodial parent on paper. He has more time, though- and since I pay $40/month in child support, he's listed as the CP with the child support office.