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don't claim Jimmy as a qualifying child for any of the other tax benefits listed earlier, your mother can claim both you and Jimmy as qualifying children for the EIC. Example 6—Grandparent with too much earned in- come to claim EIC. The facts are the same as in Exam- ple 1 except that your mother earned $50,000 from her job. Because your mother's earned income is too high for her to claim the EIC, only you can claim the EIC using your son. Example 7—Parent with too much earned income to claim EIC. The facts are the same as in Example 1 except that you earned $50,000 from your job and your AGI is $50,500. Your earned income is too high for you to claim the EIC. But your mother can’t claim the EIC either, because her AGI isn't higher than yours. Example 8—Separated parents. You, your hus- band, and your 10-year-old son Joey lived together until August 1, 2021, when your husband moved out of the household. In August and September, Joey lived with you. For the rest of the year, Joey lived with your husband, who is Joey's father. Joey is a qualifying child of both you and your husband because he lived with each of you for more than half the year and because he met the relationship, age, and joint return tests for both of you. At the end of the year, you and your husband still weren't divorced, legally separated, or separated under a written separation agree- ment, so the Special rule for divorced or separated pa- rents (or parents who live apart) doesn't apply. You and your husband will file separate returns. Your husband agrees to let you treat Joey as a qualifying child. This means, if your husband doesn't claim Joey as a qual- ifying child for any of the tax benefits listed earlier, you can claim him as a qualifying child for any tax benefit listed earlier for which you qualify. However, you can't take the EIC because you and your husband didn't live apart for the last 6 months of 2021 and, while you did live apart at the end of 2021, you aren't legally separated under a writ- ten separation agreement or decree of separate mainte- nance. Therefore, you don't meet the requirements to take the EIC as a married taxpayer filing a separate return. See Rule 3. You also can't take the credit for child and de- pendent care expenses because your filing status is mar- ried filing separately and you and your husband didn't live apart for the last 6 months of 2021. See Pub. 503. Example 9—Separated parents claim same child. The facts are the same as in Example 8, except that you and your husband both claim Joey as a qualifying child. In this case, only your husband will be allowed to treat Joey as a qualifying child. This is because, during 2021, the boy lived with him longer than with you. You can’t claim the EIC because your filing status is married filing sepa- rately and you don’t have a qualifying child. However, your husband's filing status is also married filing separately, so he can’t claim the EIC because you and your husband didn't live apart for the last 6 months of 2021 or you aren't legally separated under a written separation agreement or decree of separate maintenance. Therefore, your hus- band doesn't meet the requirements to take the EIC as a married taxpayer filing a separate return. See Rule 3. Your husband also can't take the credit for child and dependent care expenses because his filing status is married filing separately and you and your husband didn't live apart for the last 6 months of 2021. See Pub. 503. Example 10—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, and joint return tests for both you and his father. Your earned income and AGI are $12,000, and your son's father's earned income and AGI are $14,000. Neither of you had any other in- come. Your son's father agrees to let you treat the child as a qualifying child. This means if your son's father doesn't claim your son as a qualifying child for the EIC or any of the other tax benefits listed earlier, you can claim him as a qualifying child for the EIC and any of the other tax bene- fits listed earlier for which you qualify. Example 11—Unmarried parents claim same child. The facts are the same as in Example 10 except that 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. You can claim the EIC without a qualifying child. Example 12—Child did not live with a parent. You and your 7-year-old niece, your sister's child, lived with your mother all year. You are 25 years old, and your AGI is $9,300. Your only income was from a part-time job. Your mother's AGI is $15,000. Her only income was from her job. Your niece's parents file jointly, have an AGI of less than $9,000, and don't live with you or their child. Your niece is a qualifying child of both you and your mother because she meets the relationship, age, resi- dency, and joint return tests for both you and your mother. However, only your mother can treat her as a qualifying child. This is because your mother's AGI, $15,000, is more than your AGI, $9,300. Special rule for divorced or separated parents (or parents who live apart). A child will be treated as the qualifying child of his or her noncustodial parent if all of the following statements are true. 1. The parents: a. Are divorced or legally separated under a decree of divorce or separate maintenance; b. Are separated under a written separation agree- ment; or c. Lived apart at all time during the last 6 months of 2021, whether or not they are or were married. 2. The child received over half of his or her support for the year from the parents. 3. The child is in the custody of one or both parents for more than half of 2021. Chapter 2 Rules if You Have a Qualifying Child Page 15