Two taxpayers have 2 children. have never been married, and live together. They both provide support for the children. They both have earned income. The EIC is not an issue. The father has the higher AGI. There is NO dispute between the father and the mother that the mother can claim the children as dependents and therefore take the child tax credit. Can I claim the children on the mother's return as long as her filing status is single or do the children have to be claimed on the father's tax return because he has the higher AGI? Could you please provide the source of your answer i.e. Publication number. Thank you.
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Yes, the mother can claim them even if her AGI is lower than his. Look at Examples 9 and 10 in Publication 501.
Example 9—unmarried parents.
You, your 5-year-old son, and your son's father lived together all year. You and your son's father aren't married. Your son is a qualifying child of both you and his father because he meets the relationship, age, residency, support, and joint return tests for both you and his father. Your AGI is $12,000 and your son's father's AGI is $14,000. Your son's father agrees to let you claim the child as a qualifying child. This means you can claim him as a qualifying child for the dependency exemption, child tax credit, head of household filing status, credit for child and dependent care expenses, exclusion for dependent care benefits, and the earned income credit, if you qualify for each of those tax benefits (and if your son's father doesn't claim your son as a qualifying child for any of those tax benefits).
Example 10—unmarried parents claim same child.
The facts are the same as in Example 9 except you and your son's father both claim your son as a qualifying child. In this case, only your son's father will be allowed to treat your son as a qualifying child. This is because his AGI, $14,000, is more than your AGI, $12,000. If you claimed an exemption or the child tax credit for your son, the IRS will disallow your claim to both these tax benefits. If you don't have another qualifying child or dependent, the IRS will also disallow your claim to the earned income credit, head of household filing status, the credit for child and dependent care expenses, and the exclusion for dependent care benefits.
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