Client's Ex Claimed their son

[jim5917]

Client and his ex have been each claiming 1 child the past few years. This year his ex claimed both kids. He has a Child Custody Order from the court showing Joint custody. Can we paper file with the order? Is that sufficient to claim the child?

[rbynaker]

The order is completely irrelevant.  Go through the requirements for claiming a dependent.  What matters to the IRS is physical custody (number of nights) not whatever a judge put on a piece of paper.

[TaxGuyBill]

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@jim5917 wrote:

. He has a Child Custody Order from the court showing Joint custody.

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A court order showing "custody" means nothing.  For tax purposes, custody means which parent had the kids the most nights during the year.

With that in mind, is your client the Custodial parent, or is your client the Noncustodial parent?

[TaxGuyBill]

Rick beat me to it.  🤣

[qbteachmt]

I'd add: Claiming for what purpose? Dependent? Child Care? Tax Credit? HOH?

Try the interactive tax wizards:

https://www.irs.gov/help/ita

Custody is not a tax issue.

[rbynaker]

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@TaxGuyBill wrote:

Rick beat me to it.  🤣

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Yeah but Michele is the wizard of the interactive wizards.

[jim5917]

Claiming for HOH and Child tax credit. They split the nights 50/50. The spouse has higher AGI

[TaxGuyBill]

There were 365 days in 2021.  So there is no such thing as 50% - one person had more nights.

[TaxGuyBill]

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@rbynaker wrote:

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@TaxGuyBill wrote:

Rick beat me to it.  🤣

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Yeah but Michele is the wizard of the interactive wizards.

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Unfortunately, sometimes those "wizards" are not accurate.  I don't remember which one, but there is at least one that handles Social Security wrong (it doesn't deal with the non-taxable Social Security correctly).

[BobKamman]

Physical custody doesn't matter either.  What counts is a signed Form 8332 (assuming the divorce was within recent memory).  

[sjrcpa]

I don't think you need that if they have legal joint custody. Although I could be wrong.

I don't see these situations very often, fortunately.

[jim5917]

Ok, suppose we can prove we had the one extra night. Would we paper file the return with a cover sheet explaining our position?

[TaxGuyBill · Accepted solution]

You would paper file.  No need to include anything because they won't read it.

Both parents will eventually receive a notice from the IRS (often a year or more) asking the parents to "prove" that they are eligible to claim the child.

https://www.irs.gov/pub/irs-pdf/f886hdep.pdf