Diane Posted January 31, 2011 Report Share Posted January 31, 2011 Client is separated. Haven't lived together since first of June. She pays more than half the support for the child. But, they share custody of the child 50/50. He lives with each of them 50% of the time. They have an agreement that the father will take the child as a dependent on the 2010 tax return. She in 2011. I'm having a problem with the HOH selection. Since neither one of them have custody for 'more than half the year' do they both have to file MFS? Can either one of them claim HOH? Also, this is not a friendly separation. Diane Quote Link to comment Share on other sites More sharing options...
Lion EA Posted January 31, 2011 Report Share Posted January 31, 2011 The IRS doesn't care about their agreement, just which parent had the child the most nights. Have your client get out her calendar and count the nights the child spent with her for all of 2010. It wasn't a leap year, so unless they dragged the child out of bed in the middle of one night I doubt if each parent had the child 182 1/2 nights. Quote Link to comment Share on other sites More sharing options...
kcjenkins Posted January 31, 2011 Report Share Posted January 31, 2011 Since neither one of them have custody for 'more than half the year' do they both have to file MFS? Can either one of them claim HOH? Also, this is not a friendly separation. Diane When it comes to HOH, custody does not mean 'legal custody' which may well be shared 50/50, it means 'physical custody' which the IRS counts as 'nights spent with each'. So one of them always will have more than the other, unless it's a leap year, for sure. And realistically, once the child is in school, one will almost always have a clear lead, since during the school year, that kid is not going to alternate nights, they will be in one house at least 4 and usually 5 nights, even if they spend all the weekends with the other parent. So your question is, where does the child spend the most time? That is the parent who can claim HOH. The other one will still be MFS until they divorce or get a 'legal seperation' through the court system. Quote Link to comment Share on other sites More sharing options...
Diane Posted January 31, 2011 Author Report Share Posted January 31, 2011 I emailed her to get out her calendar and count the nights. My other question, if she has the majority of 'nights' spent with her, she can then claim HOH. Since they both support the child they are sharing the dependency exemption. In 2010 He gets the exemption; 2011 She gets the exemption. I read that she can still file HOH (if she qualifies for the more than 50% rule), even though through a legal agreement He gets the dependency exemption for 2010. (Does this make sense?) Quote Link to comment Share on other sites More sharing options...
kcjenkins Posted January 31, 2011 Report Share Posted January 31, 2011 Yes, it is in accordance with the Code. Lots of things in the code do not make sense, but if it's legal, that is all that counts. She can claim HOH while letting him claim the dependency, and she will still get the EIC, and the CTC, if she qualifies for it. Quote Link to comment Share on other sites More sharing options...
Diane Posted January 31, 2011 Author Report Share Posted January 31, 2011 Thank you so much. I really wanted to make sure that I would be preparing this return correctly. Diane Quote Link to comment Share on other sites More sharing options...
mcb39 Posted January 31, 2011 Report Share Posted January 31, 2011 Yes, it is in accordance with the Code. Lots of things in the code do not make sense, but if it's legal, that is all that counts. She can claim HOH while letting him claim the dependency, and she will still get the EIC, and the CTC, if she qualifies for it. Doesn't the CTC follow the dependency? Quote Link to comment Share on other sites More sharing options...
kcjenkins Posted January 31, 2011 Report Share Posted January 31, 2011 Yes, you are correct, she gets the EIC, if any, but he would get the CTC. Quote Link to comment Share on other sites More sharing options...
Pacun Posted January 31, 2011 Report Share Posted January 31, 2011 Yes, you are correct, she gets the EIC, if any, but he would get the CTC. He will NOT get CTC since he will state that the child lived with him only 5 months. She will get HH AND EIC. No one gets CTC. Quote Link to comment Share on other sites More sharing options...
mcb39 Posted February 1, 2011 Report Share Posted February 1, 2011 He will NOT get CTC since he will state that the child lived with him only 5 months. She will get HH AND EIC. No one gets CTC. Read the rules for Divorced or Separated parents. It plainly says 2) One or both parents had custody for more than half of the year. Quote Link to comment Share on other sites More sharing options...
jainen Posted February 3, 2011 Report Share Posted February 3, 2011 >>When it comes to HOH... nights spent with each<< The old rule about nights is for custodial parent in terms of Form 8332, NOT Head of Household which uses the newer Qualifying Child and Tiebreaker rules. I suppose you could count nights (including May 31) to find that one parent is custodial, and hang on to filing status while releasing exemption and credit. I recommend asking the lawyer in this unfriendly proceeding whether a conciliatory or aggressive approach would be best in this small matter. In the original post, the child apparently lived with both parents for 151 days, and each for half of 214 days. She is a Qualifying Child for both, so by agreement either parent can claim her for dependency and the other four benefits. But they can't split those benefits--if BOTH claim her, the tiebreaker goes to the parent with the higher AGI (assuming time was equal, an awkward calculation). Since the mother has already agreed to not claim the child in 2010, the question about Head of Household seems moot to me. Quote Link to comment Share on other sites More sharing options...
TAXBILLY Posted February 3, 2011 Report Share Posted February 3, 2011 Welcome back j. We missed you. taxbilly Quote Link to comment Share on other sites More sharing options...
mcb39 Posted February 3, 2011 Report Share Posted February 3, 2011 Welcome back j. We missed you. taxbilly AMEN!!!!!! Quote Link to comment Share on other sites More sharing options...
jainen Posted February 4, 2011 Report Share Posted February 4, 2011 >>Welcome back<< Why, thank you! I've been going through a bit of mid-life crisis since turning 62 last September. I finally decided what I needed most was new toys, because (as I told my wife) my tax software required it. I went all the way over, ordering some monster with more RAM than my old computer had hard drive, plus the newest Intel chip just released that week. I unpacked it on Monday, the very day it was recalled! But what about my theory that Mom can't claim Head of Household without violating her agreement, which the judge probably won't tolerate? Quote Link to comment Share on other sites More sharing options...
Pacun Posted February 4, 2011 Report Share Posted February 4, 2011 Read the rules for Divorced or Separated parents. It plainly says 2) One or both parents had custody for more than half of the year. Welcome back Jainen. I forgot to realize that the child lived with both parents at the beginning of the year. My answer will be correct for next year if parents don't sleep in the same room. Quote Link to comment Share on other sites More sharing options...
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