My ex and I seperated before the birth of my son, never married. My son now 2yrs old (second tax season) His father decided to claim for him without consulting me. My son lives with me and visits w/ his father maybe once a week. I feel I have the right to claim my son since my household is my son's primary residence. Now that I have claimed his as well, how will this tie-breaker work? And what kind of documentation do I use to prove I should claim him?
The parent with more physical custody during the year controls the personal exemption and child tax credit. From your stated facts, that's you.
IRS will tell you when they get to processing the second (yours or your ex's) return.
-- Phil Marti Clarksburg, MD
The determination as to whom can claim the 2 year old turns on which parent had custody for more than half the year (at least 183 days in 2006). It sounds as though that is you. If he already e-filed, then you will have to file a paper return (your e-file would get rejected as the SS# for the dependent is already in the system as claimed). When the IRS gets your return it will eventually trigger letters to the both of you. You both will then have to substantiate the number of days of custody. How you do this depends on many factors. Who cares for the child during the day? Do you work and put the child in day care or are you a stay at home mom? Does someone such as a relative care for the child when you go to work? Does he work? Does he live nearby? Do you have friends that can bear attest to the number of days the child has spent with you?
Your feeling is consistent with the Internal Revenue Code. You need to prove that you were the custodial parent and primary caregiver. If you have physical custody, that's pretty much a slam dunk unless there are issues you haven't disclosed.
If you want to be nice to your son's father, tell him he should file an amended return or he will be part of an IRS audit of the situation. It's really not an audit, but the word 'audit' evokes fear in deep into the souls of even the most macho of men.
Dick
The tie-breaker rules are pretty clear on this; if your son lived with you more than half the year, he's yours to claim. Since you both claimed him, you will both be audited by the IRS. Rather than guess as to what kind of documentation you will need to prove that you were the custodial parent, I would recommend that you call the advocate at your local IRS office with that question. The advocate can either answer your question or direct you to someone who can. Be prepared to spend some time on hold :)
-- John D. Goulden
Parent with physical custody has the right to claim the child. Period. IRS established that rule years ago. Your "ex" is in trouble. Nan, EA in LA.
In a situation like this, where the child is a qualifying child of both parents, the first tie-breaker rule is that the exemption goes to the parent who had PHYSICAL CUSTODY of the child for the greater amount of the year. That sounds like you. If you both claim the child, the IRS will notice and send each of you a letter asking for substantiation of your claim(s). Be prepared to show documentation that the child lived with you (medical records, day care receipts, neighborhood witnesses, etc) when and if asked.
Hi Herb.. Thanks for that.. Now what if there was a divorce decree involved that entitles the exemption to the parent who does not have custody ? Can the custodial parent still claim Head of Household status without the dependency expemtion ? All this while the non-custodial parent also files head of household with the dependancy exemption entitled from the divorce decree..
Nan I don't think that is always the case. A parent could have physical custody, and not the right to claim the child as a dependant per a divorce decree. The parent with custody has the right to file head of household and claim child and dependant care expenses, and the EIC if applicable. But the non-custodial parent claims the dependency exemption and the child tax credit. Even if that non-custodial parent is single or Married, they would file single with a dependant, or Married with a dependant, but not as head of household. Someone correct me if I am wrong.
It depends on whether the divorce decree includes all the required information for the custodial parent to cede the dependency exemption (and child tax credit--they go together) to the noncustodial parent. If it does, the noncustodial parent gets the exemption. If it doesn't, without a signed 8332 or equivalent statement from the custodial parent, it goes to the custodial parent. See Publication 501.
-- Phil Marti Clarksburg, MD
IF there were a divorce decree (original post indicated a never- married situation) awarding the dependency exemption to the noncustodial parent, the custodial parent would be required (by the court) to sign a form 8332 authorizing this. The IRS is not a party to your divorce decree and does not have to honor such a condition unless the form is signed and attached to the return of the noncustodial parent. The non-custodial parent CANNOT claim the Head of Household status (for obvious reasons).
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