Claiming my ex with custody order in place

[Zigner]

My question I just want to know if I’m right about what I’m going to do. My ex and my child stayed with me all year until beginning of December she called the police on me and I went to jail. Ther has been a custody order in place since my child was 1 she is now 7. So I’ve been providing for her and my child all year she’s been a stay at home mom with no income. I’m going to claim her and my child beginning next year. But I think she is going to try to beat me to the punch. I am entitled to claim her correct ?

When you got out of jail, did you return to the same home that mom and child live in?

 

[Jovahutc]

When you got out of jail, did you return to the same home that mom and child live in?

No why does that matter? I was ordered no contact

 

[stealth2]

I am sorry i think that is bull I’m going to claim them both because I am entitled.I provided for them both all year. Plus I have medical and school records that say the child was staying here and who would be watching her but her mother. So they were both staying with me

Sometimes, it is wise to listen to the advice professionals have provided. Of course, if you don't like what two tax professionals have told you - for free - perhaps you should consider paying an accountant.

 

[Zigner]

No why does that matter? I was ordered no contact

Had you returned to the home, it may have been considered a temporary absence, similar to if you had been hospitalized, but the fact that you did NOT return to the home means that the child will have lived longer with mom than with you.

 

[Just Blue]

I am sorry i think that is bull I’m going to claim them both because I am entitled.I provided for them both all year. Plus I have medical and school records that say the child was staying here and who would be watching her but her mother. So they were both staying with me

Taxing Matters is a site vetted tax attorney.

 

[Taxing Matters]

Sorry TM but I completely disagree with you about the length of time that the child lived with the parents. This issue is something that is hammered home in continuing education on a regular basis...and hammered home in due diligence continuing ed. I have also been through this issue with dozens of our firm's client's in paper audits over the past few years.

Yes, I reviewed the publication and it's wording, and I do find that troublesome, since it seems to contradict well established due diligence guidelines regarding the claiming of children. However, I am not going to accept it because again, it contradicts the serious due diligence guidelines in continuing ed.

Sorry, LdiJ but I disagree with you and your continuing ed once again. I can't comment on whether your understanding of the continuing ed was correct since I haven't seen the materials you got or heard what the presenters said. But I know what the statute and regulations say. The language in Publication 501 should be troubling to you because the IRS did not pick that wording by accident. It comes from the statute and regs itself. IRC § 152(c)(4)(B) provides the tie breaker for the admittedly less common situation of both parents claiming the exemption but the rule for divorced and separated parents does not apply. But that is indeed the situation we have here if the mother and child moved out in early December (and the OP's facts are not entirely clear on that). Subparagraph (B) states:

(B) More than 1 parent claiming qualifying child.--If the parents claiming any qualifying child do not file a joint return together, such child shall be treated as the qualifying child of--​

(i) the parent with whom the child resided for the longest period of time during the taxable year, or​

(ii) if the child resides with both parents for the same amount of time during such taxable year, the parent with the highest adjusted gross income.​

The applicable regulation, Treas. Reg. § 1.152-4(a) says the same thing:

(a) In general. A taxpayer may claim a dependency deduction for a child (as defined in section 152(f)(1)) only if the child is the qualifying child of the taxpayer under section 152(c) or the qualifying relative of the taxpayer under section 152(d). Section 152(c)(4)(B) provides that a child who is claimed as a qualifying child by parents who do not file a joint return together is treated as the qualifying child of the parent with whom the child resides for a longer period of time during the taxable year or, if the child resides with both parents for an equal period of time, of the parent with the higher adjusted gross income. However, a child is treated as the qualifying child or qualifying relative of the noncustodial parent if the custodial parent releases a claim to the exemption under section 152(e) and this section.​

(Italics added).

The language of the regulation and statute seems very clear to me. The choice of tie breaker here is not accidental. It puts this situation essentially on par with the outcome in the rule for divorced and separated parents where the custodial parent (the parent with whom the child lived most of the year) gets the exemption by default. So tell me, how does your continuing ed effectively write out the residence requirement out of the statute and use the AGI as the first tie breaker? Upon what guidance does it rely upon to go straight to the AGI here? Because given the statute and regulations cited above, I'm not seeing any way to get around that.

As for the audits you've seen, I cannot comment as I don't what the facts of those were to know which particular dependency rules would apply and whether the IRS examiner and taxpayer reps really understood the rule of § 152(c)(4)(B).

 

[Taxing Matters]

TM makes no sense about the child the child lived with me more than 11 months the mother has no income so how would I not be able to claim the child??

It's a simple thing. Read what I quoted from the statute and regulations in my reply above. The rule when two parents claim the exemption for the same child under the qualifying child rule the parent who gets the exemption is the parent with whom the child lived the longest during the year, i.e. which parent the child lived with the most days of the year, and if the child lived with both parents the same number of days, then it is the parent that has the highest adjusted gross income (AGI). As I understand the facts, you were arrested and put in jail in early December and have ever since getting out been living apart from the mother and child due to a court order. If the continues through the end the of year and into next year such that this cannot be considered a temporary absence (like a vacation, temporary job assignment, etc) then you will not have lived with the child for the full year. But apparently the child will have lived with the mother for the entire year. That would mean then that the child lived with the mother for more days of the year than the child lived with you and under the tie breaker rule the exemption would go to her. If the facts are different than that, then the outcome may be different.

 

[not2cleverRed]

I am sorry i think that is bull I’m going to claim them both because I am entitled.I provided for them both all year. Plus I have medical and school records that say the child was staying here and who would be watching her but her mother. So they were both staying with me

It doesn't matter what you "think" any more than what you "feel". The law is the law.

If the law says that someone has to live in your household the entire year, then "almost a year" doesn't count, especially with DV allegations against YOU being the reason you're out.

If the law says that the parent the child lives with more can count the child, then Mom's 366 trumps your... less than 365. Especially since the CO has Mom as CP and you as NCP.

What makes you think that Mom won't get a W2? Is she working very few hours or for less than minimum wage?!

 

[davew9128]

Taxing Matters is an attorney. LD is a "tax professional". Let's see who is more educated on the subject of taxes? Oh yeah... the person who practices TAX LAW.

With respect to both TM and LD, that comment is absolute crap. I prepare individual tax returns for tax attorneys because they have no idea how to do it. I've called out tax attorneys for being grossly (bordering on negligent) wrong on corporate transactions. I think you grossly overestimate the tax knowledge of tax attorneys in general particularly when it comes to filing compliance.

 

[Taxing Matters]

I think you grossly overestimate the tax knowledge of tax attorneys in general particularly when it comes to filing compliance.

Just so people understand things a bit better, tax attorneys, CPAs, EAs, and return preparers each occupy a bit different niche in the tax world, some of which overlap. It's not so much a case of which group of tax professionals knows that tax world better — you can find very competent and knowledgeable people in each group as well clueless ones. But they bring different skills to the table because they handle different kinds of things. I'm an attorney. Tax is most of what I do, but I do other areas of law, too. In regards to tax, I do litigation, handle tax controversy issues between clients and tax agencies, and advise clients on the tax aspects of their legal issues. But clients don't hire me to prepare returns. I'd cost too much and I'm not really set up to do that on a scale that is cost and time efficient. So a tax professional that handles lots of return preparation will know better the ins and outs of preparing and filing returns, using the tax prep software, and so forth much better than I do.

So when looking for a tax professional, you match the type of professional you need with the problem you have. It's like with any other area that has different sets of professionals with overlapping skills. Both a heart surgeon and a general practice doctor are licensed to practice medicine and at least in theory both could treat that skin condition you have, but the general practice doc has likely seen more skin conditions and can treat that more effectively than the heart surgeon, and likely at lesser cost too.

I prepare individual tax returns for tax attorneys because they have no idea how to do it.

It is also generally more cost effective for the lawyer to hire that out than do himself/herself too since the time spent preparing that return, especially when not set up to do it, is time he or she could (at least in theory) spend on client matters, for which he or she gets paid more than what he/she is paying a person who is set up to do returns in a cost effective manner. So even if the attorney does know how to do it, he or she may still hire it out. That said, I still do all my own returns because when I was working for IRS I had to be sure that everything was done perfectly — IRS gets particularly cranky if its enforcement employees or attorneys end up owing tax in an audit — and the only way to really ensure that my returns were good was to do it myself and take my time to ensure I didn't screw anything up. Since I was in the habit of doing that already, I never stopped after leaving the government. It at least gives me an appreciation for what goes into it and what the return preparers have to deal with. I admire those who turn out accurate returns very efficiently, that requires a set up and skills that I don't have. When I do my own returns, they are certainly not done in a time efficient manner.