Head of Household of Single

[SunTaxMan]

Taxpayer divorced. Divorce decree specifies 50/50 custody - and the very specific scheduling in the divorce decree accomplishes this.

IRS said because taxpayer did not have MORE than 50% custody, he did not provide a household for dependent MORE than half he year, therefore HH status not allowed.

Correct? Any way to avoid this situation?

Thanks,

[grandmabee]

How are you counting? Days, nights or hours ? If using day or night can't be 50/50 with 365 days. Did you he get audited? if you are using the devorce decree I would calulate actual time, not just use 50/50 per divorce.

[SunTaxMan]

The "50/50" is a given and not in question. I am wondering if the 50/50 (rather than 49.99/50.01) precludes "more than 1/2 the year" for Head of Household status.

[jainen]

>>The "50/50" is a given <<

Like bcoleen said, it is not possible. The law specifically demands that the divorce decree can't be used to determine custody. You must look at the actual time the child lived with each parent. But if you can't accept that, then in my opinion you must at least accept the IRS ruling that neither parent had "MORE than 50%."

[kcjenkins]

TR, Jainen is correct. The divorce decree does NOT control the TAX treatment, period. If an auditor told you otherwise, they were wrong. There are numerous tax court cases backing this up. And, in fact, there are IRS rulings and procs as well, that make it very clear that it is PHYSICAL custody that determines both who can claim the child, and who can claim HOH.