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Unfortunately, you may not claim EIC for a child that is not your dependent on the tax return and that did not live with you. You may use the filing status of Head of Household if you had a qualifying person. The rules for qualifying persons for HOH purposes is different than the rules for dependents. For head of household purposes the person must live with you for more than half the year. So it is possible that a person could be your dependent but still not qualify you for the Head of Household filing status.If your child did not live with you then you can not claim head of household and if your spouse (who did not live with you the last 6 months of year) claimed the child because they lived with her then you can not claim the child and would be required to use Married Filing Separately.
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Both girls lived with me 5 nights a week as I pay their school, medical expenses, etc. She had them during the day, and then on Friday and Sunday. If I mail in my taxes, and they see we both filed HOH, how do they decide who to credit?
They both are mydependants, but I let her file one of them
If you mail your return then the IRS will look to documentation that substantiates your claim.
If two or more taxpayers claim a dependent as a qualifying child in the same year, the IRS will use the following tie-breaker tests to determine which taxpayer is eligible to claim the dependent. The tie-breaker tests are listed in order of priority.
The child will be the qualifying child of:
You will need to mail your return if you choose to proceed.
So how will the IRS decide who is correct?
You each will be asked to prove that the child (children) lived with you more than the other. Consider having a log of where the child spends the night. What is the address for Drs, school, clubs, all other areas where your address is listed as the same for the children. You will need to send this information to the IRS.
When you mail your return the IRS will send a letter to each of you.
The notice will explain the information they will accept.
If your wife wants to amend her return and correctly use oneof the children then all this can be corrected.
Can I attach a letter with my return, as well as the temporary custody order
Yes you can. You will want to include copies of as much of the proof as you can gather, even a written signed statement form someone that knows the place where the children spend their nights.
Ok, thank you