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Can divorced parents, under the new tax laws (tax year 2018) assign the child's dependency exemption using Form 8332 under 26 USC 152(e)?

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Can a noncustodial parent get to claim the child for education credits and the custodial parent file Head of Household and/or get the EIC?

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6 Replies 6
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Level 9
Level 9

I think it depends on how old the child is.  If 19 and over, then no for the noncustodial parent. 

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Level 11
Level 11
I believe the education credits ARE available to non- custodial parent, if the child qualifies. If you read pub 970, the credit is available if you claim the child on your tax return as a dependent, and you meet the income limits, and not filing MFS
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Level 9
Level 9
If the custodial parent is claiming HOH and it is a student 19 or over then I don't think the noncustodial can claim because they don't meet the member of household test for the dependency exemption.  The student can't be a member of household for both of them.
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Level 12
In order to transfer the dependency exemption, the 'child' can't be "emancipated" for over 1/2 the year (in most states, that happens at age 18).  See examples 6 and 7 in Regulation 1.152-4.
https://www.law.cornell.edu/cfr/text/26/1.152-4
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Level 11
Level 11
Thanks TaxGuyBill, just goes to show, never too old to learn something new 🙂
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Level 7
The 8332 info in Pub 970 does not list the Education Credit as one of the available credits to claim for the Non-Custodial so I'm thinking NO. If the Custodial parent does not claim the Ed credit (even if eligible to claim it) then only the dependent can claim the credit but will not receive the refundable portion.
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