What should be my filing status/ Head of household or single? various answers from lawyers, irs, experts

Asked about 1 year ago - Morristown, NJ

I am the NCP, jnt custody, single, never married,1 child only lives w mom, have 8 days per month overnights w/ me. . the court order says: use alternate years to claim our son in your taxes. I called IRS 800 # and they told my file as single and claim your son, some lawyers told me file as head of household and claim your child, others tell me file as single and claim your child...Which is the correct answer? I read the publication and my head almost exploted trying to undetstand the rules. How about in the yrs I do not claim my son/ Am I single or head of household...I fear the IRS and I do not want any issues with them at all...

Attorney answers (2)

  1. Richard Gordon Stack

    Contributor Level 13

    1

    Lawyer agrees

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    Answered . Mr. Nielson has given good advice, except that I believe that you can claim HOH filing status in the years where you are allowed to claim your son as a dependent per the divorce decree. Please find attached a previous response to this question that I posted.

    You can file your tax return for this year under the head of household filing status and claim your son as a dependent on the return. Please find attached excerpts from IRS Publication 501, which sets forth the requirements for claiming head of household filing status and a special rule for separated spouses to claim their child as a qualifying dependent:

    Considered Unmarried

    To qualify for head of household status, you must be either unmarried or considered unmarried on the last day of the year. You are considered unmarried on the last day of the tax year if you meet all the following tests.

    1. You file a separate return (defined earlier under Joint Return After Separate Returns ).

    2. You paid more than half the cost of keeping up your home for the tax year.

    3. Your spouse did not live in your home during the last 6 months of the tax year. Your spouse is considered to live in your home even if he or she is temporarily absent due to special circumstances. See Temporary absences , later.

    4. Your home was the main home of your child, stepchild, or foster child for more than half the year. (See Home of qualifying person , later, for rules applying to a child's birth, death, or temporary absence during the year.)

    5. You must be able to claim an exemption for the child. However, you meet this test if you cannot claim the exemption only because the noncustodial parent can claim the child using the rules described later in Children of divorced or separated parents (or parents who live apart) under Qualifying Child or in Support Test for Children of Divorced or Separated Parents (or Parents Who Live Apart) under Qualifying Relative. The general rules for claiming an exemption for a dependent are explained later under Exemptions for Dependents .


    Children of divorced or separated parents (or parents who live apart). In most cases, because of the residency test, a child of divorced or separated parents is the qualifying child of the custodial parent. However, the child will be treated as the qualifying child of the noncustodial parent if all four of the following statements are true.

    1. The parents:

    Are divorced or legally separated under a decree of divorce or separate maintenance,

    Are separated under a written separation agreement, or

    Lived apart at all times during the last 6 months of the year, whether or not they are or were married.

    2. The child received over half of his or her support for the year from the parents.

    3. The child is in the custody of one or both parents for more than half of the year.

    4. Either of the following statements is true.

    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.)

    A pre-1985 decree of divorce or separate maintenance or written separation agreement that applies to 2012 states that the noncustodial parent can claim the child as a dependent, the decree or agreement was not changed after 1984 to say the noncustodial parent cannot claim the child as a dependent, and the noncustodial parent provides at least $600 for the child's support during the year.

    http://www.irs.gov/publications/p501/ar02.html#.

    The answer to this question does not establish an attorney-client relationship. Moreover, this attorney is... more
  2. Evan A Nielsen

    Contributor Level 18

    2

    Lawyers agree

    Answered . In the years you don't have a dependent, you'd need to file single. In the years when you do claim the dependent, there's a possibility you'd be able to file HoH but from what you're describing, you may still end up needing to file single. I'd recommend you consult with your personal tax professional and then proceed accordingly.

    Good luck.

    Evan A. Nielsen is licensed to practice law in California and handles federal tax matters throughout the U.S. The... more

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