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Question
My ex Wife an I were divorced in November of 2011 and have joint legal and joint physical custody of one minor child.  As per our divorce agreement, we alternate years in which we claim our child for taxes.  In 2012, I claimed him for the 2011 taxes with a filing status of HOH, as we all lived at the same residence up till Dec of 2011 and I paid the majority of the bills.  With the 2012 tax season upon us, it is .now my ex's year to claim him.  However,  as my son spent 188 days with me and 177 with his mother in 2012, I want to file HOH.  She says I can't because its her year to claim him.  I say I can, because he was with me the majority of the time, regardless of who gets to claim him as a dependent.  Can you please advise?

Answer
Dear Rob,

Technically (for IRS) purposes you are correct your kid stayed with you more than 50% of the time and you paid the majority of the bills. Absent from your set of facts the age of your child and if he/she had any income. Assuming that these missing facts does not disqualify your child, you would still claim your kid and claim the HOH status.

However, you and your ex-wife have a joint legal and physical custody of your child and you have agreed per the divorce decree to alternate the dependency exemption for tax purposes.

Since you are the custodial parent and you are required to let your ex-wife claim your child, remember that the exemption only includes the exemption and the child tax credit.

You as a custodial parent, you keep the Head of Household designation, the Earned Income Tax Credit (if you qualify), and the Child Care Credit (if applicable).

I hope this answer your question. If I can be of any further help please let me know.

Regards,
Abraham Itani, CPA

P.S please, do not forget to rate my answer.

Tax Law (Questions About Taxes)

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ABRAHAM ITANI, CPA

Expertise

TAX QUESTIONS DOMESTIC AND INTERNATIONAL OUTBOUND AND INBOUND. FBAR COMPLIANCE. CORPORATE, PERSONAL, PARTNERSHIP, PASS TROUGH ENTITIES, S-CORPORATION, LLC, TRUST, GIFT TAX, 1120, 1040, LATE FILING, NON FILING, AMT, FTC.

Experience

MORE THAN 10 YEARS OF STATE AUDIT TAXATION, MORE THAN 10 YEARS OF PRIVATE AND PUBLIC TAX EXPERIENCE WITH ITANI ACCOUNTING AND TAX, KPMG AND MNP. DEALING WITH HIGH NET WEALTH INDIVIDUALS, LARGE PARTNERSHIPS, EXPAT., CFC AND PFIC. DEALING WITH TAXING AUTHORITY ON ISSUES OF NON FILINGS AND LATE FILINGS.

Organizations
MEMBER OF AICPA, AND NJSCPA.

Education/Credentials
CERTIFIED PUBLIC ACCOUNTANT IN NEW JERSEY AND COLORADO.

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