This should be pretty straight forward, so hopefully it’s all kosher WRT legal/tax advice.
During my divorce, my ex and I decided to alternate years for who gets to claim our daughter on our taxes. Simple, amicable and everyone’s happy.
For 2010, I claimed her. Now, I’m starting on 2011. I’m not going to claim her, so do I even list her on my taxes or do I just take her off them all together?
TaxAct gives me the option of listing a dependent as “Child who lived with someone else due to divorce/separation” and then I can list how many months they lived with the other person for. When I went through the little mini interview it listed her as a “non dependent” but it’s odd that it still allows me to choose “Head of Household” as a filing status (which requires a dependent). Of course, maybe it’ll flag that later on.
Anyways, the TLDR version is. I’m not claiming her. Should I even list her on my taxes or just take her off them altogether (which is what my instincts tell me to do?).
Also, FTR, before submitting my taxes on TaxAct I always do them again on TurboTax and make sure I get the same results. That way I can double check my work. But more importantly I get all the benefits of TurboTax (which, to be honest, does a better job) but I can file everything for what TaxAct charges. And yes, I know I can file directly with the IRS and my state for free, but for $17.95 it’s nice to know everything is always available online if there would be an issue, but maybe I’ll look into it this year.
You are incorrect in your assumption that you cannot file as Head of Household if your child is not your dependent. An unmarried child does not necessarily have to be claimed as a dependent in order to be a qualifying person for HoH status. If you want the bloody details, refer to Table 4 on page 9 of Publication 501. I do not have enough information to tell you if you qualify or not, I am just saying that your assumption that you don’t qualify just because you can’t claim a dependent is wrong.
I suggest that you tell your software the information it asks for. Answer accurately and let it decide whether you can be an HoH. If you qualify, your daughter’s name must be listed on line 4 of your Form 1040. Remember that not all of the information your software asks for will be put on your 1040 and sent to the IRS. A lot of the information is just asked for so that the software can decide whether it matters and whether to put it in the finished product.
By the way, it is impossible for an ordinary taxpayer to file directly with the IRS. The tax industry has a strong lobbying arm that has blocked all attempts to do so. The “free filing” options are all through private industry that offers it so that the Congresscritters can back the tax preparation industry but still say with a straight face “Look, anybody can file for free!” Just remember that anything you e-file does not go directly to the IRS (even the so-called “free file” links on the IRS web site), but passes through a private tax preparation firm which keeps a copy for its records.
ETA: too slow at typing. What **Alley Dweller **said.
Entering your kid into a tax *program *isn’t the same as having her appear on your tax return. As long as the return doesn;t reflect a deduction for her & your filing status is correct you’re done.
You may have to delete the daughter to convince the program to do what you want. Or you may not. And with two programs (can you say “overcautious?”) you may have two answers.
The easiest thing to do is to see what the generated 1040 says & adjust your inputs until you get the output you want.
1)Okay, I’m unmarried
2)Okay, I paid more then half the cost of keeping up my home.
3)Right here is the problem. the link you provided me says that in order to file as head of household a “qualifying person” must have lived with me for more then half the year. Since the only “qualifying person” is my daughter and she is being claimed by my ex-wife for 2011, there seems to be a problem. Either the IRS is wrong, you’re wrong or I’m missing something.
Could you please explain how one can claim head of household without claiming a dependent?
I wouldn’t say overcautious, I’d just call it cautious because TaxAct really doesn’t do nearly as good of a job as TurboTax does. The first year I used TaxAct I decided to put all my info into TT as well, just for kicks and my refund ended up being about a hundred or so dollars higher. I don’t remember the details but TT caught something that TA missed. After spending about an hour comparing everything I figured it out and it was either a deduction or credit that TT entered automatically but I had to manually enter in TA. It’s also just a good way to make sure I’ve entered everything. Besides, it only takes 15 minutes or so to enter everything into the second program and for my peace of mind, it’s not that big of a deal.
Did she or didn’t she live with you for more than half the year? Since it is possible for your wife to claim her as a dependent even if she didn’t live with your wife more than half the year, the fact that your wife is claiming her tells me and the IRS nothing.
Did you look at Publication 501?
Did you read the first line in Table 4?
Note what footnote 2 says:
“2The term “qualifying child” is defined under Exemptions for Dependents, later. Note: If you are a noncustodial parent, the term “qualifying child” for
head of household filing status does not include a child who is your qualifying child for exemption purposes only because of the rules described
under Children of divorced or separated parents or parents who live apart under Qualifying Child, later. If you are the custodial parent and those
rules apply, the child generally is your qualifying child for head of household filing status even though the child is not a qualifying child for whom
you can claim an exemption.”
On page 13, the section titled “Children of divorced or separated parents or parents who live apart” explains the circumstances under which a non-custodial parent can take the dependency exemption even if the child did not live with the parent for more than half the year. One of the conditions involves a written agreement like the one you describe.
Also, please look at Form 1040. Look at line 4 in the “Filing Status” section.
It says:
“Head of household (with qualifying person). (See instructions.) If the qualifying person is a child but not your dependent, enter this child’s name here. ”
And then there is a blank space to fill in the name of the child who is a qualifying person but not your dependent. So obviously there is a way to be a Head of Household without having a dependent.
See also page 17 of the instructions (pdf) to last year’s 1040. It notes that the special exception that allows a noncustodial parent to claim a child as a dependent does not apply to HoH status.
One of the qualifications to file as head of household as unmarried with a child that you aren’t claiming as a dependent is this: The custodial parent signs a written declaration, discussed later, that he or she will not claim the child as a dependent for the year, and the noncustodial parent attaches this written declaration to his or her return. (If the decree or agreement went into effect after 1984 and before 2009, see Post-1984 and pre-2009 divorce decree or separation agreement , later. If the decree or agreement went into effect after 2008, see Post-2008 divorce decree or separation agreement , later.)
From what I’m getting from this, yes, you can claim HOH if you have a qualifying person that isn’t a dependent (this is a special case where the dependent can fail the residency test)…as long as no one else claims them as a dependent. I think that’s what this is all going to come down to…you can’t have to people claiming the same person as a dependent, I assume we can all agree on that, right. And from that, I gather, you can’t have two people claiming HOH based on the same person. Right?
Perhaps I’ll just plug all my info into a TurboTax form and see what it spits out.
You are right that two people cannot claim the same dependent and two people cannot claim HoH status based on the same person.
The “custodial parent” in this context is the one in whose home the child spends the most time (including temporary absences). Please go back and re-read your quote with this in mind. Here is what it says with this substitution: The parent in whose home the child spent the most time signs a written declaration, discussed later, that he or she will not claim the child as a dependent for the year, and the noncustodial parent attaches this written declaration to his or her return. (If the decree or agreement went into effect after 1984 and before 2009, see Post-1984 and pre-2009 divorce decree or separation agreement , later. If the decree or agreement went into effect after 2008, see Post-2008 divorce decree or separation agreement , later.)
Nowhere does it say that nobody else is allowed to claim them as a dependent. (“Custodial parent” does not mean the same thing here that it means in divorce law.)
There is an exception to the residency test for claiming a dependent.
There is no exception to the residency test for claiming HoH status.
So, if your daughter spent more than half the year with your wife, you don’t get HoH status (unless you have a different child or qualifying person who lived with you). In this context, you are not the “custodial parent.”
If you signed away your right to take the dependency exemption in your divorce agreement. but your daughter spent more than half the year in your home, then (in this context) you are the “custodial parent.” The custodial parent gets to use the child as a qualifying person for HoH status. The non-custodial parent does not, even though she gets to take the dependency exemption. So, conceivably, your ex-wife may get the dependent but may not be able to file as HoH.
You might want to read this. In particular, read “3)EXCEPTION to “No King Solomon Rule” for non-custodial parent.”
YOU STILL HAVEN’T ANSWERED THIS SIMPLE QUESTION: Who did your daughter live with more during the year?
If you would just answer this question, people could give you more succinct advice without a lot of “but if…” clauses.
By all means, plug it into TurboTax and let it help you. That’s what you are paying for!
You’re mixing up the rules for claiming a dependent and the rules for claiming HoH status, but you’re getting to mostly the right conclusion.
Bottom line is that only one person can claim HoH status based on a particular child, and only one person can claim that child as a dependent. As between divorced parents, the only one who can ever claim HoH status based on that child is the parent with whom the child lived for the majority of the year. See the 1040 Instructions that I linked earlier, p.13. Who claims dependent status can vary, however; typically, it’s the custodial parent, but the custodial parent can waive that claim and allow the noncustodial parent to claim it. See 1040 Instructions, pp. 15-17.
Alternatively, look at p.13 of those Instructions, under Line 4 – Head of Household. Go to Test 2, and then step 4 of that test: “You paid over half the cost of keeping up a home in which you lived and in which one of the following also lived for more than half of the year … 4. Your child who, even though you are the custodial parent, is neither your dependent nor your qualifying child because of the rule for ‘Children of divorced or separated parents’ in the line 6c instructions. If the child is not your dependent, enter the child’s name on line 4. If you do not enter the name, it will take us longer to process your return.”
Disclaimer: I am not your lawyer. Nothing posted here is intended to nor should be inferred to create an attorney-client relationship. This is just anonymous chat and not legal advice; do not rely upon it without consulting an appropriate professional adviser on your behalf.
I honestly couldn’t tell you. I have her 4 nights per week and she has her three nights per week. That alone puts me 52 nights ahead…but she has her enough off schedule days that without actually recording it all year I really don’t know the real answer. Besides, when we split up we mutually decided that we would alternate who took all the benefits. It wasn’t until after the divorce that we even learned about the concept of HOH (someone mentioned it to her in passing) and I read up on it. For the sake of making everything easier for the next 12 (or however it works out) we’ll probably just pass the HOH back and forth along with claiming her as a dependent.
Which brings me back to my original question, do I need to even bother listing her on my taxes, which I suppose is moot anyways since I might as well just fill in the info the wizard asks me to fill in and let it make the decisions. The reason I got worried is because I didn’t fill this in, it was pulled forward from last year based on her being a dependent.
But I have a much better understanding of HOH then I did before. I really didn’t know that you could claim HOH without a dependent. Now I’m sort of curious as to why the IRS allows one person to claim HOH and someone else to claim the person as a dependent. My guess is that would be so that one person can raise the child in their house and claim HOH while the other parent can pay child support and claim the kid as a dependent.
You can’t pass HOH back and forth like the dependency exemption. Either you qualify or you don’t. Since you say you’re unsure whether the child lived with you over half the year, the standard advice is not to claim HOH since you don’t have the factual data to survive an audit for this claim.
You don’t need to list the child on your tax forms (unless you plan on filing HOH). However, if your tax program has wording to the effect “list anyone who lived with you as part of your household”, you would list the child as such for IRS record-keeping purposes.
It’s an exception for the special situation of divorced parents so they can transfer the dependent exemption back and forth every other year. The noncustodial parent can claim the child as a dependent for any given year only if the custodial parent files Form 8332 that releases the exemption to them.
Also, if your income is fairly low, below $40,000 or so, you’ll want to list her on your return to get the Earned Income Credit (if you can attest she lived over half the year with you in case of an audit). Your former spouse would claim the dependent exemption along with the child tax credit for her if you sign Form 8332 which she would file with her return.
Joey P, I suggest that for your protection you get some sort of a diary and make a habit of marking down in it at the end of the day where your daughter spent the day. A little pocket calendar would do, you should probably be able to find them for at least 50% off now. In the unfortunate event that you should be chosen for an audit, you are going to need something like this to substantiate your claim for HoH status. It’s too late for 2011 of course, but it would be a shame to throw away a tax benefit you could claim in 2012. Just keep the diary/calendar somewhere handy and make it a habit to make an entry before you go to sleep or after dinner or whatever works for you. And you would need to substantiate her residency for HoH purposes regardless of whether you claim her as a dependent or not.
As to your question why the IRS does it this way: They are just enforcing the law the way Congress wrote it. It’s not at their discretion. Why did Congress write it this way? I don’t know.
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