If both parents who were never married want to claim the earned income credit, which parent is entitled to claim the credit as an eligible individual with a qualifying child?

Answer:

If they otherwise meet all of the requirements to claim the earned income credit (EIC), unmarried parents with a qualifying child may choose which parent will claim the qualifying child for the EIC.

  • If there are two qualifying children, each parent may claim the credit based on one child.
  • One parent may claim the credit based on both children.
  • If both parents claim the same qualifying child for the EIC, but don't file a joint return together, the IRS will apply tie-breaker rules and treat the child as the qualifying child of the parent with whom the child lives for the longer amount of time in the tax year. If the child lives with each parent for the same amount of time, the IRS will treat the child as the qualifying child of the parent who has the higher adjusted gross income (AGI) for the tax year.

Although the parents may decide which of them will claim the qualifying child, in most cases they will not be able to divide all the tax benefits related to that qualifying child between them. These tax benefits include:  

  • Child tax credit, credit for other dependents, or additional child credit.
  • Head of household filing status.
  • Credit for child and dependent care expenses.
  • Exclusion for dependent care benefits.
  • EIC.

If a child can be a qualifying child of more than one person, only one person can actually claim the child as a qualifying child to take each of these tax benefits, provided the person is eligible for it. The two parents cannot decide that either of them will claim the EIC separate from all the other benefits. The other parent usually can't take any of these tax benefits unless that other parent has a different qualifying child.

There are instances where neither parent can claim the child as a qualifying child, and some other person is entitled to claim the child as a qualifying child for purposes of the EIC. In instances where a child is a qualifying child of two or more taxpayers, a taxpayer who is not the child's parent may claim the child as a qualifying child for purposes of the EIC:

  • If no parent can claim the child as a qualifying child, the child is treated as the qualifying child of the non-parent taxpayer who has the highest AGI for the tax year.
  • If either or both of the parents can claim the child as a qualifying child but neither parent claims the child, the child is treated as the qualifying child of the nonparent taxpayer who has the highest AGI, but only if that non-parent taxpayer's AGI is higher than the AGI of either of the child's parents who can claim the child as a qualifying child.

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