Hello JA Customer,
If the custodial parent is a non US citizen and not a resident of the US, then there is no need for that parent to complete the Form 8332. The non custodial parent would simply claim the child, and there will be no conflict here since the non custodial parent does not file a US tax return.
Although your child would not actually qualify to be treated as a qualifying child, you can claim the child as a dependent using the qualifying relative rules. Using those rules it is not required that the child actually lives with you at all. The only thing that is required is that you provide more than half of the child's support and that the child does not have income of his own of more than $3,650 for the year.
Thank you JA Customer
Hello again JA Customer,
Depending on what tax software you are using, it should ask you the dependent type that you are claiming. One of the options is qualifying child, but there should be other choices, including perhaps a choice of "other dependent" which would include the qualifying relative. I would suggest you go back through the interview questions and try to update that information, and then it should no longer ask you for the form 8332 to be completed.
Also, there is really no reason for you to not claim the child every year as long as you provide more than half of the child's support. The child qualifies to be claimed as long as you provide more than half of his support and he does not have income of his own of more than$3,650 for the year. The other requirement is that the child not be the qualifying child of another taxpayer -- and since the mother is not a US citizen, then the child is not a qualifying child of another taxpayer. You could claim the child in any year that you provide more than half the support and the child does not have his own income which exceeds the limit. So yes, you could go back and file an amended return for last year.
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Yes, in the years where you are actually allowed to claim the child as a qualifying child, then you can also claim the child tax credit.
It may be worth your while to see if your former spouse would be willing to amend the divorce agreement to show that you can claim the child every year. This would certainly cause her no tax implications since she does not file a US return anyway and doesn't gain anything by not letting you claim the child every year. This would be the best solution to your problems, so you may want to pursue that option.
Thank you JA