dependent care

[Flutie37]

can one claim dependent expense if spouse claim him/her as a dependent on her taxes

[ATSMAN]

No. It follows the child!

[Lion]

Doesn't the childcare credit follow physical custody, where the child actually lived the most?

[TaxGuyBill]

I agree, it belongs to the custodial parent and doesn't matter how actually claims the child as a dependent.

[dtlee]

I agree with the TaxGuyBill. The original post did not necessarily indicate that the spouses are living apart or otherwise eligible for the Divorced or Separated Parents rule (although I agree that is what it appears to be asking).

When one parent is custodial and the other is noncustodial, the custodial parent is the only one who can claim the Child and Dependent Care Credit and only for what that parent actually paid. Thus, if the two spouses each pay half, the custodial parent would claim the half paid by that parent.

[Lion]

And, "custodial" is the tax definition and might or might not match what lawyers put in the divorce decree.

[tpert]

And, "custodial" is the tax definition and might or might not match what lawyers put in the divorce decree.

I agree.

I keep telling clients that the IRS only accepts their own definition of "custodial."

[ddoshan]

I agree.

I keep telling clients that the IRS only accepts their own definition of "custodial."

Wondering if the IRS has backtracked a little about being able to use the divorce decree terms after 2008. Instead of basically an 8332 be needed. Seems I read somewhere (Instructions, taxbook) where they have insinuated that the decree would be satisfactory even if, as they all do, there is a mention of some condition such as being current in child support.
There was a court case I read recently that allowed the parent to claim the child based on the divorce decree even though it had some conditions written in as to being current with child support. Logic was that the decree stated that the other parent would provide the necessary tax document or form such as an 8332 to the other party. Which they refused to provide and claimed the child based on the fact that he or she was the custodial parent as the child lived with them all year.
The bottom line was that the court allowed the non-custodial parent to claim the child even though the decree did have conditions.
Don't recall the case, but believe it was a recent one.

[tpert]

I think this was Billy Armstrong.

My reading was that since the language of the divorce decree was conditioned on him being current with Child Support, he was not allowed to claim the exemption without Form 8332.

[ddoshan]

I think this was Billy Armstrong.

My reading was that since the language of the divorce decree was conditioned on him being current with Child Support, he was not allowed to claim the exemption without Form 8332.

Sorry I can't remember the case other than it was recent. But he was allowed by the tax court to claim the child even though the decree did have certain conditions attached. The other parent refused to issue a form 8332. I know in the past that in almost every instance the divorce decree has not held up to scrutiny as far as the IRS is concerned. But this court case seemed to go against the IRS position.