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12 JUN 2006

TAXATION: Commissioner's Case No CTC 4390 2004

(David Williams, Social Security Commissioner, 12 June 2006)

The separated parents each looked after all of the children for half the time. The father was the first to claim child tax credits, and was awarded them. When the mother applied, she was awarded the credits instead, and the father's credits were stopped. The tribunal awarded the credits to the father as first in time.

Only one parent could be treated as having 'main responsibility' for any one child, under the Child Tax Credit Regulations 2002, r 2.2. Agreement between the parents, joint election, as to which parent had 'main responsibility' for which child, was binding on the Commissioners; this could result in shared entitlements that could not be formally awarded, and could even result in the two parents receiving more child tax credits than would either on her or his own. Also, there was nothing in law to stop the parents informally agreeing to share the tax credit paid to one of them. In this case, although it was agreed that the optimal claim was for the mother to claim for all the children, the parents had not been able to reach agreement. The tribunal could not refuse to decide which parent had the 'main responsibility' and rely on the chronology of claims to decide the dispute. In a marginal case, in which 'main responsibility' was very difficult to identify, it would be possible, as a matter of law, to take the approach that whichever of the claims would result in greater advantage to the children, would be treated as having the 'main responsibility'.

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