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Client's Ex Claimed their son

jim5917
Level 3

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?

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TaxGuyBill
Level 15

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

 

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12 Comments 12
rbynaker
Level 13

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
Level 15

@jim5917 wrote:

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


 

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
Level 15

Rick beat me to it.  🤣

qbteachmt
Level 15

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.

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rbynaker
Level 13

@TaxGuyBill wrote:

Rick beat me to it.  🤣


Yeah but Michele is the wizard of the interactive wizards.

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jim5917
Level 3

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

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TaxGuyBill
Level 15

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

TaxGuyBill
Level 15

@rbynaker wrote:

@TaxGuyBill wrote:

Rick beat me to it.  🤣


Yeah but Michele is the wizard of the interactive wizards.


 

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
Level 15

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

sjrcpa
Level 15

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.

The more I know, the more I don't know.
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jim5917
Level 3

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

 

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TaxGuyBill
Level 15

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