Head of household status - tiebreaker ???

[mtwingcpa]

According to the table on page 3-16 of TheTaxBook, in the 5th example from the top, HOH status will go to the parent with the greater AGI if neither parent can prove MORE than 50% custody.

Can anyone cite an authoritative basis for this conclusion? It looks to me like more than 50% custody is required by the applicable code section and thus if neither parent can prove it, neither gets HOH status. AGI does NOT appear to be a factor or tiebreaker in this situation.

Comments ???

[BP.]

Check out Pub 17, p. 28, table 3-2. To even make it to the tie breaker rule, the child (QC) has to live with parent for more than half the year, or more than 50%. TTB 3-16 #5, and Pub 17 table 3-2, say that AGI is a factor when the child lived with each parent the same amount of time during the year. (Not 50% with one and then 50% with the other.) Living with each parent the same amount of time, as well as with each parent over half the year would occur when both parents and the child all lived together for part of the year, then parents lived apart and split custody the rest of the year. So then each parent could claim more than 50% custody, as well as living with child same amount of time during the year. I believe this is when AGI becomes a factor.

By the way, example 5 doesn't state it goes to higher AGI if neither can prove more than 50% custody. It says if they have equal custody.

[mtwingcpa]

Thanks. OK, I see your point about the possibility that the parents and child all lived together for part of the year.

But, in that case, wouldn't only ONE of the parents be able to demonstrate that they paid MORE than half the cost of maintaining their home for the year? In that case, we wouldn't get to the tiebreaker based on AGI because one of the parents wouldn't qualify for HOH in the first place.

In other words, to restate the HOH requirements, I believe that 1) you must pay more than half the cost of maintaining your home for the ENTIRE year, and 2) the qualifying individual must live with you IN THAT HOME for MORE THAN HALF the year. I'm having a hard time imagining how BOTH parents could simultaneously meet that test, such that we would then need to resort to the AGI tiebreaker.

???

[jainen]

Remember

>>I'm having a hard time imagining how BOTH parents could simultaneously meet that test, such that we would then need to resort to the AGI tiebreaker.<<

Remember that the tiebreaker rules apply to the UNIFIED definition that covers five different tax benefits.Therefore it might not be a question of who claims Head of Household, but rather of dependency or EIC.

For example, suppose the father paid all the household costs where the child lived for seven months, and the mother also lived there for two months and then took the child to a different home for the other five months. If the mother wanted EIC, she could claim the child and the higher AGI would win the tiebreaker, even though she could not file Head of Household anyway.

[George Boutwell]

Divorce Situations

Kid lives with both parents for half the year, and each contribute equally to support of that household. House is sold, kid lives with Mom three months in house she supports completely; then with Dad for three months in house he supports completely.

It used to be that both could claim HoH based on same kid -- but now the kid has to be a dependent of one or the other? I would have to look it up.