Both claim kids as dependents

[herewegoagain]

Me and my ex both claimed our kids on Federal Income Tax this year. We have joint legal custody he has residential parent. We share parenting time 50/50. IRS CSR says because it is 50/50 and joint legal...whoever can prove who paid more for the child within the year will win.

Anyone have any thoughts or past experiences on how to proceed.

 

[loku]

There are special rules for determining who gets the exemptions in the case of divorced parents. A custodial parent (1) having custody for the greater portion of the calendar year may claim an exemption if (2) the child received more than half its support from it parents, (3) the parents are divorced or legally separated under a decree of divorce or separate maintenance, are separated pursuant to a written agreement, or lived apart for the last six months of the calendar year, and (4) the child is in fact in the custody of one or both parents for more than half the year. (Section 152(e)).

Notice there are 4 factors in determining if the special rules apply. In your case, if your child lived with each of you for exactly ½ of the year, neither of you had custody for the greater portion of the year and therefore, the special rules do not apply. In that case, the one who contributed most to the support of the child would be entitled to the exemption.

For rules for determining who paid the most support see IRS Publication 17, Your Federal Income Tax, which you can download for free at the IRS site at: http://www.irs.ustreas.gov/forms_pubs/index.html

 

[herewegoagain]

I pay weekly child support. Is that money to my favor when determine who paid more support?

 

[loku]

Yes it is. Again, I suggest you get Publication 17. It explains all you have to know, and it has worksheets.

 

[roamer5]

Being new to this Forum and a junior member, can I add to this answer, as I have been a tax preparer for a few years.

 

[roamer5]

Another item to look at would be Publication 504, Divorced or Separated Indiviudals. It too can be downloaded or viewed on-line at www.irs.gov.

The way I understand it is that if both parents combined provide more than half the support of a child, and all other conditions are met, then the "custodial" parent claims the exemption, not necessarily the one who provides more than half the support. If the custodial parent is not specified in the divorce decree or separation agreement, then the custodial parent is the one who the child lived with the most during the tax year. Hope this helps.

 

[loku]

I agree that Pub 504 would be helpful, although Pub 17 has all that is needed.

I also agree that the custodial parent would be entitled to the exemption, but that was the problem here: they both had the child an exactly equal number of days; therefore, the special rule you quote does not apply.

 

[roamer5]

It may depend upon where the child goes to school from. In that case, time spent with the other parent could count as a temporary absence. Also, the address used for the child's medical services and other activities may be a factor in determining the custodial parent.

This is just my opinion on interpreting who the custodial parent is. I am open to suggestions as I occasionally run into this doing returns.

 

[herewegoagain]

To Roamer 5:

It is acutally shared parenting...splitting the week. The kids go to school in his district (residential parent) but the week is split with both parents. We transport back and forth. Medical benefits is with the non residential parent using the residential parents address. Child support paid by the non residential parent even though the shared parenting time is equally split.

 

[roamer5]

I know for a fact that you both cannot claim the child. I'm going to assume that you already filed and we're talking about tax year 2001.
If that's the case, eventually each of you will get a letter from the IRS requesting that one of you file an ammended return (1040X) without the benefit of the exemption.

The custodial parent may be the residential parent, but I cannot say for sure. This gets into a procedural matter. In other words, do you get to decide who the custodial parent is, or do you need to submit the situation to the IRS and let them decide. At this point the advice of a tax attorney is needed.

 

[herewegoagain]

Never once thought both could claim them. Just wanted to know what the laws were. The publication that you suggested is informative but not enough. I called the IRS and they basically told me the same thing that Loku said. Thanks

 

[herewegoagain]

Loku,

Thanks for the information. The publication was most infomrative and certainly is what the IRS also told me on the phone. Thanks so much for your information.