Many taxpayers have been audited by the IRS because they illegally claim either the earned income tax credit (EITC) and child tax credit (CTC) or other credits because they claimed their children on their tax return. In many cases, the credits were disallowed because the child or children did not meet the residency test for the tax year the parents claimed the child or children.
Many divorced and separated parents often agree in divorce settlement, decree or separation agreement that they will alternate who claim the child or children for tax filing purposes. By doing so, some taxpayers believe they could legally claim the Head of Household filing status. The agreement or settlement does not confer a legal right to the non-custodial parent to claim the Head of Household filing status.
Per IRC section 152(e), “a child may be treated as a qualifying child of the noncustodial parent rather than of the custodial parent when certain criteria are met. For the child to be the qualifying child of the noncustodial parent, the custodial parent must sign Form 8332 or another writing conforming to the substance of Form 8332 releasing the custodial parent’s claim to the dependency exemption deduction. The noncustodial parent must then attach the Form 8332 or equivalent writing to his or her Federal income tax return”.
In David Charles Katz and Mary Joan Wright v. Commissioner of Internal Revenue (T.C. Summary Opinion 2013-98), the Court upheld the IRS disallowance of the child tax credit because Form 8332 or its equivalent was not attached to taxpayer’s tax return at the time of filing or within the time that the return could be amended.
Petitioners contended that according to their divorce decree they were each entitled to claim one child as a dependent for tax purposes and that a Form 8332 or its equivalent was not even required. The court concluded that it is the Internal Revenue Code, and not State court orders or decrees, that determines a taxpayer’s eligibility for a deduction for Federal income tax purposes.
The Tax Court, in Jackson M. Browning v. Commissioner of Internal Revenue (T.C. Summary Opinion 2012-121), stated that “section 152(e) was intended by Congress to preclude the IRS and the Federal courts from becoming embroiled in disputes between parents over child support issues and the like”.
The Court has concluded in several cases that a noncustodial parent who fails to attach a Form 8332 to his or her return as filed is ineligible to claim the dependency exemption.
You cannot legally claim the Head of Household filing status on your tax return even when the custodial parent releases the child through a legal separation agreement or a divorce settlement/decree, unless the child or children lived with you for more than half of the year.
A qualifying taxpayer must be unmarried or “considered unmarried” on the last day of the year and pays more than half the cost of keeping up a home for the tax year. Under the Head of Household filing status, a taxpayer is considered unmarried if the spouse did not live in the home in the last 6 months of the tax year and they file a separate return. Further, there must be a qualifying child who lived with the taxpayer for more than half of the year.
The custodial parent may claim a child as a qualifying child, a child of divorced or separated parents, for Head of Household filing status even if the other parent claims the same child.
The noncustodial parent can only claim the child as a dependent and as a qualifying child for the child tax credit or other dependent credit. However, the noncustodial parent cannot claim the head of household filing status, the exclusion for dependent care benefits, the credit for child and dependent care expenses, and the earned income credit.
Regardless of the agreement stipulation, a parent must be the custodial parent to claim all the tax benefits for the child or children, except the child tax credit or credit for other dependents. Under current law, the child tax credit amount is $2,000.00 and the other dependent credit is $500.00.
- Charles Katz and Mary Joan Wright v. Commissioner, T.C. Summary Opinion 2013-98
- Jackson M. Browning v. Commissioner, T.C. Summary Opinion 2012-121
- Santana v. Commissioner, T.C. Memo. 2012-49
- Espinoza v. Commissioner, T.C. Memo. 2011-108
- Deficit Reduction Act of 1984, Pub. L. No. 98-369, sec. 423(a), 98 Stat. at 799
- Brissett v. Commissioner , T.C. Memo. 2003-310;
- IRS Treas. Regs. sec. 1.152-4(e).
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