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I am in the process of filing tax for the year 2017. Myself…

I am in the process...
I am in the process of filing tax for the year 2017. Myself and my ex.wife alternate claiming our daughter in the USA(Federal and State) tax return. This year(2017) I can claim my daughter in the tax return.My lawyer told me that as long as my ex.wife does not claim the credit for child care expenses, I can claim the credit for child care expenses even though I am the non custodial parent.Please clarify.
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Answered in 18 minutes by:
3/20/2018
Lev
Lev, Tax Advisor
Category: Tax
Satisfied Customers: 33,293
Experience: Taxes, Immigration, Labor Relations
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First of all

if I were talking to your attorney - I would point out on IRS publication 504

https://www.irs.gov/pub/irs-pdf/p504.pdf

specifically page 9

Tests To Be a Qualifying Child

#3 The child must have lived with you for more than half of the year.

So far you will not satisfy this test

HOWEVER

page 10

Children of divorced or separated parents (or pa-rents who live apart).

A child will be treated as the qualifying child of his or her noncustodial parent if...

and are outlined all details.

.

May be your attorney change his/her opinion?

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Customer reply replied 4 months ago
Ok that means as a non custodial parent I can’t get credit for child care expenses, correct? If my ex.wife does not claim credit for child care expenses then what will happen to the credit?

Yes - that is correct.

Legally - you are not eligible to claim the credit for child care expenses

If the custodial parent will not claim that credit - nobody will receive it.

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Customer reply replied 4 months ago
Ok. I don’t see this directly mentioned in the IRS publication which you referred. Could you please point out so that I can show it to my attorney?

https://www.irs.gov/pub/irs-pdf/p504.pdf

pages 12-13

Example 1. You and your 5-year-old son lived all year with your mother, who paid the entire cost of keeping up the home. Your AGI is $10,000. Your mother's AGI is $25,000. Your son's father does not live with you or your son. Under the rules for children of divorced or separated parents (or parents who live apart), your son is treated as the qualifying child of his father, who can claim an exemption and the child tax credit for the child if he meets all the requirements to do so. Because of this, you cannot claim an exemption or the child tax credit for your son. However, your son's father can’t claim your son as a qualifying child for head of household filing status, the credit for child and dependent care expenses, the exclusion for dependent care benefits, or the earned income credit.

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Customer reply replied 4 months ago
Sorry for the delay in reply. I am planning to file for Tax Id for my wife once she comes to USA. I am planning to amend the 2017 tax return once she is in USA? Can I amend the 2017 tax return as soon as my wife is here in USA? Please let me know

Can I amend the 2017 tax return as soon as my wife is here in USA?

Yes - you will be able to file separate tax return now and amend it later after your spouse will be here and will apply for her SSN.

Or you may request an extension for 6 months and file later.

That will be your choice.

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Customer reply replied 4 months ago
What should be my filing status? Single or Married filing separately? Please let me know

If you are legally married - you may not use Single as a filing status - you will use Married Filing Separately.

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Customer reply replied 4 months ago
Thanks for your response. I will file it with status "Married filing separately".In my current W4 submitted in 2017, for box 3, I selected single because the instruction said, if spouse is a non resident alien, select single(W4 2017 instructions). However, In W4 2018 form, there is no such instruction and it only says "If married filing separately, check “Married, but withhold at higher Single rate.”What should I change in my W4 form? Currently, the selection is single. Is it a problem in filing my tax return for the year 2017?

Selection on W4 doesn't affect your filing stratus on your tax return.

W4 only affect withholding. That doesn't create any issues for your tax return filing

You are not required to change W4.

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Customer reply replied 4 months ago
What should I select in my w4 now for box 3?

"Married, but withhold at higher Single rate."

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Customer reply replied 4 months ago
Ok. I will change. Just to make sure, so far I left it as single, it will not create any issue,correct?

That will not make any difference and you are not required to change.

Lev
Lev, Tax Advisor
Category: Tax
Satisfied Customers: 33,293
Experience: Taxes, Immigration, Labor Relations
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Customer reply replied 4 months ago
Thanks for your excellent service
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