Joint taxation with children: the key lies in custody and guardianship

Determining who can opt for a joint income tax return in cases of separation or divorce is a frequent point of inquiry. Recently, the Directorate General of Taxes (DGT) has clarified the applicable criteria to establish which parent has the authority to form a family unit with minor children.

What the DGT has ruled

The inquiry concerned the possibility of a parent forming a family unit with their two children. After analyzing current regulations, the DGT has ruled that the option for joint taxation corresponds exclusively to the parent who has been assigned custody and guardianship of the children as of the tax accrual date.

In the specific case analyzed, as the mother held sole custody and guardianship, the administration established that she is the one who possesses the option to file a joint tax return with the children. Conversely, the parent who does not hold custody must file their return individually.

What this means for you

This criterion establishes a clear distinction based on the effective custody situation at the close of the fiscal year. For divorced or separated parents, this implies that:

• The right to a family unit is not shared equally for tax purposes if custody is sole.
• The ability to opt for a joint tax return depends on the legal status of custody and guardianship at the time of tax accrual.
• The parent without custody lacks the authority to include the children in their income tax return.

What you should do

It is essential to verify the legally established custody situation to determine the most appropriate tax strategy. Since the regulations are based on the Personal Income Tax (IRPF) Law and the General Tax Law, the correct attribution of custody and guardianship is the determining factor for exercising this right. It is recommended to assess each particular situation to ensure that the tax return is filed in accordance with the family's legal reality.