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Can either claim credits for same dependent?

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Level 2

unmarried couple lives together and has a child so father will claim HOH with their child and the mother will claim child for a dependent and CTC.  Can the mother also claim the EIC (if eligible income wise) and the child's daycare expenses or can only the one claiming HOH claim EIC and or daycare expenses if eligible?

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Level 9
Level 9

Only 1 can claim the child and receive any tax benefits they would be entitled to.  You can't split the child up on returns when the parents live together.

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56 Replies 56
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Level 9
Level 9

Only 1 can claim the child and receive any tax benefits they would be entitled to.  You can't split the child up on returns when the parents live together.

View solution in original post

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Level 15
Unless you have a chainsaw - but things could get a little messy.
ex-AllStar, ex-Lutefisk taste taster, ex-ACME product tester
and ex marks the spot where those rocks and anvils hit me.
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Level 9
Level 9
:joy::joy:
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Level 8
Level 8
better solution might be to have another kid.... (there's still time for 2019)
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Level 15

Is the couple living in one of the few remaining states where common law marriage is recognized?  If so, HoH would not be permissible for tax purposes.

As TAXOH says, you can't have the child split up between the parents who live together.  Who did provide for 50% of the support for the child anyway?

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Still an AllStar
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Level 7
Level 7
Who paid over 50% does not matter for a child.  I assume under 19 because they need daycare.
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Level 15
But, according to the question, the mother is trying to claim CTC and treat the child as her dependent.
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Still an AllStar
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Level 7
Level 7
Dad can pay for 100% support and allow mom to claim all benefits mom is eligible for.  Only rule is child cannot pay over 50% of own support which is probably not an issue for a young child.  If parent paid over 50% is qualifying relative rule only.
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Level 15
I stand corrected.  This wouldn't apply to the case of unmarried couple living together.
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Still an AllStar
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Level 2
The child was born in 2018 and lived with his mom and dad in same house and they are not married and father has the higher AGI.
I'm still a little confused, in this situation can the father claim HOH, then the mother claim EIC, CTC, and Dependent care credit? Or in this situation, can only the father claim HOH and the eligible credits?
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Level 9
Level 9
Father can claim HOH and the eligible credits OR mother can claim SINGLE and all the eligible credits.  You cannot split the child.
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Level 11
Level 11
:+1::+1:
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Level 15
No, you cannot.  Since the uniform definition of qualifying child was established, the IRS' position is that all the related tax provisions for tax benefits in relation to a qualifying child must be applied uniformly as a group rather than on a section by section basis, except where special rules for divorced or separated parents apply.

This was explained in Notice 2006-86 and Prop. Reg. §1.152-2 (see subsection (g)(5), especially) issued in 2017.
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Still an AllStar
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Level 2
So, if the mother claims the child and single, then she can claim the credits and he CANNOT claim HOH with the same child, correct?
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Level 9
Level 9
Correct.
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Level 8
@JimnBeck yes, he can be head of household and she can claim the child as her dependent.
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Level 9
Level 9
@Ernie I have to disagree with you.  Since they live together he would need to claim the child to qualify for head of the.
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Level 2
Okay but can she claim EIC, CTC, and dependent care credits filing single as well while he just gets the HOH deduction?
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Level 15
So, if the mother claims the child and single, then she can claim the credits and he CANNOT claim HOH with the same child, correct?   
I think TAXOH has now answered that twice.

My eyes are starting to bleed.
ex-AllStar, ex-Lutefisk taste taster, ex-ACME product tester
and ex marks the spot where those rocks and anvils hit me.
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Level 9
Level 9
Mine too.
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Level 15
@JimnBeck Think the answer is clear enough.  Citations have also been provided if you want to read up the technical details.
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Still an AllStar
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Level 8
Okay, I am posting this to make sure I am doing things correct. @TAXOH @IRonMaN .

To be Head of Household you have to have a qualifying child (you don't have to claim that child that is why there is place under HOH to enter the child's name, SS number).  Be unmarried or lived apart over half the year (they are unmarried).  You have to have paid over half the cost of keeping up the home (I am making the assumption here that he paying over half the cost of the home but that is not clear from the items posted so far).  It appears that he meets all the criteria assuming that he did provide of half of the support.

To claim the child it appears that all the criteria are met.  
qualifying child - check
member of household - check
age test - check
support test - child did not provide over half of their own support - check

So the child can be a qualifying child of either parent so either can choose to claim the child if they both agree.  If they don't agree then the tiebreaker is the higher income.

This is covered in The Tax Book on Page 3-11 the 8th one down.

Dusty Ernie
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Level 9
Level 9
The only reason he could be head of household in that example is because he pays over half the cost of the home and child's support and his AGI is higher.  But if he goes HOH he HAS to claim the child and cannot let the mom since they live together.
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Level 9
Level 9
Plus itonewbie listed the citations that explain this.
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Level 2
Okay thanks. They are potentially a new client and they were told he could claim just HOH since he qualified to do so, and she could file SINGLE and claim EIC, CTC, and Dependent Care credit that she would qualify for by claiming the child as a dependent. They said they were told even though he'd use the child's ss# for HOH, it would not affect her actually claiming the child for the three credits mentioned above.
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Level 15
But whoever told them that is not correct and you already have the citations needed to back you up.
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Still an AllStar
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Level 8
Level 8
Glad to see Taxoh and Taxiowa....  I would take anything they say on this subject as gospel.....

Years age (like > than 10) I lost a lengthy argument to them on this subject because I couldn't wrap my head around the huge loophole the IRS left standing........ I even went as far as to speak with a senior agent in the EITC section at the IRS and used the following example.

He and she are unmarried living together with two naturally born children.......  He owns a small corp and receives 300K W2 wages. She also receives 12K in W2 wages from the same Corp for whatever (business) services she performs. She can claim single with the children and the credits.  He must also file single. But, if they were married it would be  MFJ and goodbye credits
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Level 2
Thanks for all your responses. I appreciate your help!
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Level 9
Level 9
You're welcome.
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Level 8
@TAXOH @itonewbie so why in the program is there a place to enter in a dependents information if you are claiming Head of Household if you also have to claim the dependent?  There is no need for it.

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Level 15
That's for divorced and separated parents.
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Still an AllStar
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Level 9
Level 9
Confirming with itonewbie.
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Level 8
Okay, if parents are separated and the child lives with dad and he provides over 1/2 the support does he get to claim head of household if he signs a 8339 and releases the child to mom?
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Level 9
Level 9
Yes and it is form 8332.
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Level 8
Level 8
yes. divorce decrees frequently set up that the childs exemption will be alternated between the parents
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Level 8
Using The Tax Book Filing Status Chart as a guide.

Was the taxpayer unmarried? - Yes

Did the taxpayer over half the cost of keeping up his or dependent parents home? - since we are not talking about parents here no.

Did taxpayer pay over half the cost of keeping up his or own home in he or she lived? - as I said above I am making the assumption that yes he did.  Continue on.

Did another person live with taxpayer for more than half of the year? - yes child lived with the parent all year.

Was this other person claimed as a dependent by the taxpayer? - No

Was this person an unmarried qualifying child of the taxpayer?  Yes - Taxpayer can file a HOH.

Seems clear to me.  Unmarried parents who lived together all year.  The parent who paid over half of the support can claim the HOH.  The other parent can claim the child and the appropriate credits.  I will attach a copy of the page in another post for you.

@TAXOH @itonewbie
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Level 15
@Ernie In case you haven't had a chance to read the materials cited in my earlier response, you may like to read those again.  The questions you have are clearly addressed in Notice and Prop. Reg.  After that, perhaps you can come back and let us know your thoughts?
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Still an AllStar
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Level 8
@itonewbie Prop. Reg. §1.152-2 only address who a qualifying child is - it does not address the Head of Household test.  See the flow chart below.  It clearly states the child does not have to be claimed on the return as a dependent to qualify an parent as Head of Household.  I have reviewed the Notice at this point but explain the flow chart to me if I am wrong.  
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Level 8
@itonewbie so correct me where I am wrong.  

The child is a qualifying child of both parents in this situation.  

For our discussion let's assume that the father did pay more than half of the support of the child.  It is not clear from what was posted but for this discussion let us use that as a fact.

Where in the Prop Reg or the Notice that you posted does it say that you have to claim the child as a dependent in order to claim Head of Household?

It doesn't, it speaks of having a qualifying child to be able to claim Head of Household.  He does have a qualifying child.
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Level 9
Level 9
The child cannot be a qualifying child of both of them.
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Level 9
Level 9
The only other thing I can suggest to you is to try filling out the 8867 and the worksheets where they live together and are using the same child to qualify for different benefits.
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Level 8
I will just respectfully disagree unless you can point to where in the regs it says you have to claim the child as dependent to qualify for Head of Household.
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Level 15
No problem, Ernie.  It's good to have this forum so that we can flesh out ideas and verify our differences in understanding.
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Still an AllStar
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Level 8
Well, I stand corrected!  Thanks @TAXOH and @itonewbie for straightening me out.  I miss understood that rule.  Thank you!
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Level 9
Level 9
You're welcome.
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Level 15
§152 which defines qualifying child is a pivotal code section for HoH filing status because its very definition under §2(b) references that code section for who a qualifying child is.

As you said, there'll be times when more than 1 taxpayer may be able to claim a child as a dependent.  Prop. Reg. §1.152-2(g) outlines the rules for how that would be resolved.  In particular, subsection (g)(3), which addresses how the claiming of a qualifying child would coordinate with other code sections, states (emphasis added):

"Coordination with other provisions.—Except to the extent that section 152(e) and §1.152-5 apply, IF MORE THAN ONE TAXPAYER MAY CLAIM A CHILD AS A QUALIFYING CHILD, THE CHILD IS TREATED AS THE QUALIFYING CHILD OF ONLY ONE TAXPAYER FOR PURPOSES OF HEAD OF HOUSEHOLD FILING STATUS UNDER SECTION 2(b), the child and dependent care credit under section 21, the child tax credit under section 24, the earned income credit under section 32, the exclusion from income for dependent care assistance under section 129, and the dependency exemption under section 151. Thus, THE TAXPAYER CLAIMING THE INDIVIDUAL AS A QUALIFYING CHILD UNDER ***ANY*** OF THESE SECTIONS IS THE ***ONLY TAXPAYER*** WHO MAY CLAIM ANY CREDIT OR EXEMPTION UNDER THESE OTHER SECTIONS FOR THAT ***SAME INDIVIDUAL*** for a taxable year beginning in the same calendar year as the taxpayer's taxable year. If section 152(e) applies, however, the noncustodial parent may claim the child as a qualifying child for purposes of the dependency exemption and the child tax credit, and another person may claim the child for purposes of one or more of these other provisions. See §1.152-5 for rules under section 152(e)."

This Prpp. Reg. issued in 2017 resonates the IRS' long-standing position as explained in Notice 2006-86, which is summarized in the link @TAXOH provided.
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Still an AllStar
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Level 7
I learned the above lesson a few years ago in the community, I kept overlooking the asterisk in the HOH requirement and flowchart that allowed a divorced or separated parent to claim HOH without  claiming the child as a dependent.
For any of you old enough, the IRS changed the definition of a qualifying child a few years back....before that change a child did not have to be a dependent to claim HOH as long as they were in the same household a parent could claim HOH status....loophole.
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Level 8

Attached is the table from The Tax Book.

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