It’s a hassle if someone else claims your child on their tax return, but that doesn’t mean you have to give up.
This happens to people all the time. You go to electronically file your tax return and it gets rejected because someone else has already claimed your child. What do you do? I say fight back, and here’s how.
The first step to fighting back is to make sure that you’re in the right. Ask yourself these questions:
1. Are you the biological parent of the child? Hint: if your answer is “I’ve raised her like my own.” You’re going to have trouble winning. If you’re a grandparent, step parent, aunt or uncle; and the person who claimed the child is the actual parent, you don’t stand much of a chance. (That said, some folks will have a credible case, but I’d suggest professional help here because it is tricky.) To go this route you should be the real parent.
2. Did the child live with you all year? If not all year, for at least over half of the year? If you had custody all year you have a much better shot of winning. You absolutely must have had custody for over half of the year to even think of trying this. If you’re on the border line, where your ex had the child for half the year and you had half, this might not be worth it.
3. Is this good for your child? Generally you’d think that having more money in the household would be good for your child, but if fighting with your ex could cause harm to your child, you might want to stop and think about it a bit.
Step two. Once you’ve determined that you are in the right and that you are entitled to claim your child, then what you need to do is print out, sign and mail that rejected return to the IRS —keeping your child as your dependent on the tax return. When you do this, the IRS has to take it in. They have to look at it and it’s going to throw whoever claimed your child into an audit. If an Earned Income Tax Credit is involved then those audit papers generally run 11 to 22 pages long. (11 pages for a straight EIC audit, 22 for an EIC and head of household audit, they’re the same questions it’s just that 22 pages is more intimidating.)
Here’s the scary part, you’re going to get the same paperwork. It is a little intimidating, but you’re expecting it. Because you’re the custodial parent, that is your child lives with you, you can answer those questions with no problem. People who shouldn’t be claiming your kids can’t answer the questions and that’s why you’ll win. If your kids are in school, you’ll need a document from the school saying they attend and where they live. If they’re too young for school, you can get a statement from the doctor’s office that you’re their parent and you pay their medical bills. You’ll have the resources to prove that you’re the parent.
If you’re reading this and thinking, “I can’t prove I have custody of my kids,” then maybe you shouldn’t be filing for them. You will have to provide some proof: school records, doctor’s files, church documents, day care receipts, health insurance records, something professional. Your Mom or a friend can’t vouch for you.
Once you’ve received the audit papers, completed them and sent them back, then it’s a waiting game. Your ex (or whoever claimed your child) will have to complete the same paperwork. The IRS will examine the papers and determine who had the proper right to claim your child. But since it’s you, you will win.
The big downside to this is that it will take months to settle. Months. On the upside, once your ex has lost an audit case for claiming your child, it will be very difficult to ever try it again. You’re not just solving a problem for one year, you’re preventing future problems as well.
What if you need the money now? That’s the most common question. Sorry, but that’s impossible. What you’ve lost, you can’t get back without a fight. If you have more than one child, and only one was claimed incorrectly, you could file now and at least get part of your refund, then file an amended return later. I don’t recommend doing that, but I also understand sometimes you need the cash now.
If you try doing this as an amended return there are two consequences: first, it will slow everything down even more. You can’t file an amended return until your first return is completely processed. An amended return will take about 16 weeks to run through the system before the whole audit process begins so you’re basically adding 4 to 5 months to the timeline for solving this issue. Second, filing a return and amending to add a child reduces your credibility with the IRS. Your documentation had better be rock solid because you will have no wiggle room for doubt if you submit an amended return to claim your child.
One more thing to consider before you go through with this. Call your ex and talk it out. I’m not crazy, hear me out. You’ve read this far, you know that fighting is a big hassle. Before you go into warrior mode, maybe you can negotiate a peace treaty. What do you stand to gain from this? What does your ex stand to gain? It’s important that you file your returns legally, but with divorced or never married couples, you can split an exemption: the custodial parent claims head of household and EIC, the non-custodial parent claims the child tax credit and the exemption. It could be a good thing for both of you and for your child. (Remember, what’s best for the child?) Instead of going to war, you have your ex amend his/her return and you file your return right after the amendment is accepted. It still is slow, but much faster than going through an audit. And it’s a peaceful solution. (Please, don’t even think of trying this if your ex is dangerous. Safety first.)
Finding out that someone else has claimed your child for taxes can be shocking and financially devastating. The assumption is usually that it’s the ex, but that’s not always the case. When you file to claim your child, you will never be told who the other person is. (Of course, if it’s your ex you’ll probably get an unfriendly phone call so you’ll know.) It’s scary how often it’s not the ex, though. Be sure to protect your child’s social security number. Don’t keep the card in your purse. Don’t share the social security number with anyone. Your child needs your protection. It’s hard enough being a kid, being a kid with a stolen identity is worse.
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Note: Here are some links that might help:
EIC questions of any kind: http://www.irs.gov/Individuals/Earned-Income-Tax-Credit-(EITC)-%E2%80%93–Use-the-EITC-Assistant-to-Find-Out-if-You-Should-Claim-it.
How to find free tax preparers: http://www.irs.gov/Individuals/Free-Tax-Return-Preparation-for-You-by-Volunteers
How to find your local IRS office: http://www.irs.gov/uac/Contact-Your-Local-IRS-Office-1
Thank you so much for responding. The IRS did send me an IP PIN for this year, hopefully that will work out.
My husbands ex wife claimed their child on her taxes. The divorce decree states the father can claim the child as dependent in odd years, but the child lives with the mother. Will the IRS still side with the mother?
Hi Rick,
Okay let’s run this one through the wringer–
1. The girlfriend may not claim the son because the son did not live with her for the entire 12 months of the year. If he did live there for the full 12 months, then she could claim the exemption only–no EIC and no child tax credit. But–she couldn’t do that if anybody else claimed the child–so there’s pretty much no hope she’d be able to claim him.
So–now you’re into the court documents. Who has the right to claim the boy? That’s going to tell you who can claim the exemption and the child tax credit.
I’m not sure that Jeff does have any recourse, unless it’s in the divorce decree. Sorry.
My brother-in-law, Jeff, has been separated for almost three years. The divorce was finalized 3/9/12. April of 2011, his son moved out from his ex- wife and went to live with his girlfriend for the rest of the year. Jeff does not live there, however, is there most of the time anyway and pays his girlfriend to support his son. When his son left Jeff’s ex-wife, court documents were drawn up “not contesting” the son’s decision to move out and in with Jeff’s girlfriend, since primary custody is with the ex. Can Jeff’s ex claim the son? If not, what is Jeff’s recourse since the ex has already claimed the son on her taxes, even though she has not paid a dime of support nor seen him since the day he moved out.
Hey April,
You’re allowed to ramble–I’d be totally stressed too. You truly were a victim of identity theft. Hopefully things will go faster for you this time around. One thing–did you file the identity theft forms? You can get a PIN number for you and your husband because you’ve suffered from identity theft. I wish they had the PIN numbers for children’s social security numbers too, but the IRS doesn’t do that yet.
Here is a link to the form for the identity theft affidavit: http://www.irs.gov/pub/irs-pdf/f14039.pdf
I’m guessing you may have already done this, but just in case you haven’t, I think you should. It doesn’t help with your kids though.
Usually–the refund of the rest of your return will come pretty quickly. It will only be the EIC that you’ll have to wait for. I’m sorry for all the trouble that you’ve been dealing with. Good luck.
Hi, I am facing this same problem. Only there is no ex involved, I have been married to my children’s father for 20 years now and we have claimed our children every year. This year our return was rejected because someone used my sons SSN for EIC. I have mailed the paper return, and am anticipating the frustrating wait. What are the possibilities that I wil get a partial refund quickly? Last year someone stole my information and my Husbands information and used them seperately to file false returns. Seperate addresses, yet used the same employer (which neither of us had ever worked for)…go figure. That nightmare took 11 months to resolve, My husband lost his job and we are facing possible forclosure, all of our utilities are past due. Sorry for rambling, I’m not sure my nerves can go through this again.
Thanks
Hey Donna,
It sounds like you’ve done everything right and that you’re in the right so I’m 100% confident that you’ll win your IRS case. The issue will be the length of time it takes, and that could be 12 to 16 weeks. I’ve had a couple of people post that the IRS settled with them much faster–but I think there were other factors involved that helped speed things along. Assume that it will take a good 3 or 4 months though. Sorry.
We have custody of three of our grandchildren and have had through the juvenile court since January 2011. The children have lived with us since August 2010 without any parents living here or any parents support. We have drawn state benefits for these children since January 2011 as well. There mother has not even seen them since August of 2010. She is supposed to be paying child support, but hasn’t paid any. Our case was finally closed in February 2012, and the kids will remain in our custody until whenever one of the parents can file and prove they are capable of caring for them which hasn’t happened in 10 yrs so far and both are looking a jail time as well. My question is that their mother filed here taxes in Jan. and claimed the kids, so when we were able to file in February ours were kicked back. DCS and the child support court both told us that we were to claim the children and told her she was not too. So now we have sent in a paper return along with the proof of custody and child support and all. It has been at least 3 wks and we haven’t heard anything. The IRS lady on the phone told me to also print and fill out a fraud form which i did and mailed with it. I am just courious what you can tell me about what we should expect to happen, and how long it could take to get this all straightened out. Thank you for any help.
Hi Rebecca,
Without actually seeing the paperwork, I’m not sure how things stand. A lot of times I can make pretty good guesses as to what got filed and I do a lot of “shoot from the hip” kind of judgements, but it’s quite possilbe that your ex filed correctly–in which case you have no power to fight back.
Here’s what I mean–if he claimed head of household and EIC–then BAM! You’ve got him, that would be illegal and you’d have a weapon to use. But–given that there are three children to claim, he took all the exemptions–it’s quite possible that he got that large refund filing as married filing separately–which is the correct filing status in this case.
Now, he is paying the mortgage and the bills so at least you can be glad that the money he’s getting is actually being used to keep a roof over your kids heads. People going through a divorce aren’t always nice to each other. (Was that the understatement of the year?)
Since he had all your paperwork, I’m guessing he figured the tax returns both ways and decided that filing with you wasn’t to his advantage. I don’t see that you have any recourse. Sorry.
Hi Ella,
Your divorce decree gives you the right to claim your son’s exemption on your tax return–no matter what. Now, you mention “children” so I’m guessing that there’s more than just your son, so you have other children (or at least one other) that can qualify you to claim the head of household filing status. And, you also say that EIC does not fit into the equation at all.
So, my question to you is–if your ex had your son for over six months, why not let him claim the EIC and the head of household filing status–while you keep the child tax credit and the dependency exemption? First, it’s the technically correct way to file. Second, it seems like a fitting gesture since he did take care of your son for over half the year. And, most importantly–it doesn’t harm you by a single penny. (Not one penny!) Here’s informatin about splitting an exemption: http://robergtaxsolutions.com/2011/11/split-exemption-claiming-one-child-on-two-tax-returns-%E2%80%94-the-legal-way/ I think knowing that you can do that solves some problems for you and everybody wins.
Hi Charlie,
There are lots of questions that are similar, but sometimes the little nuances mae a big difference, so it’s fair to ask your question. I mean, you have a legal, notarized document–so what’s up with that? I think your question is fair.
But you won’t like my answer. (Sorry.) Number one–you do not live with your son so you can’t claim EIC. Absolutely not. It doesn’t matter what your notarized document says.
But–and this is good for you–you are allowed to claim your son for the dependency exemption and the child tax credit (which should wipe out the $700 you owe anyway.) Read this post for more information on that: http://robergtaxsolutions.com/2011/11/split-exemption-claiming-one-child-on-two-tax-returns-%E2%80%94-the-legal-way/
Now, the divorce decree may just allow you to mail a copy of those pages in to the IRS without any further issue–it all depends upon the date it’s signed. If your decree was in 2008 or earlier, just attach copies of the pages of your divorce decree and mail them in with your tax return to prove that you may claim the exemption and child tax credit. If your divorce was later, then you need a form 8332–which must be signed by your ex.
Now here’s the part where your question may be a little different than the others on this page–you say that your ex signed papers about your claiming the exemption. That might just cover your behind even if your divorce was after 2008. You see, if your read the instructions for the form 8332–you need to attach that form–or a similar statement. So that might give you your proof without having to actually get a new 8332 form signed.
Here’s a link to the form so you can see if what you’ve got basically says the same thing: http://www.irs.gov/pub/irs-pdf/f8332.pdf
Remember, you only get the child tax credit and exemption, no EIC. Your ex can still claim EIC and head of household. (You might want to use that information if you need to get her to sign something for you again.)
Hi..and thank you so much for this site! My husband and I split in mid Nov, 2011. He said we would file jointly for the year, then stole my tax forms (w2’s), and filed separately, holding my forms hostage until I got wise. He had my forms prepared, not filed.. 6 weeks later I learned what he did. He used the house mortgage exemption, and claimed the 3 children. The court order is that we both have custody with him having reasonable and liberal visitation, but I have exclusive possession of house, and physical custody of all 3 children. He is paying bills and mortgage in lieu of child support for now. I NEVER signed anything saying he could take the k ids as exemptions. I have had several surgeries, and a chronic illness, so I have not been the major breadwinner but they live with me, and he only has a 1 bdroom apt, so they can’t stay at his house. What do I do now.? He got back $5,600.00, and I only get a refund of $300.00. Thank you, Rebecca
My divorce was finalized March 2008, and modified in 2011 giving me sole custody and the right to claim minor children for tax year 2011 and further. The issue is my son lived between my ex-husband and I during 2011. My ex-husband had him for 6 months and 7 days. I know my ex-husband is going to claim him. My question is if I have sole custody and the order to claim all of my children, can I still claim him? I am not seeking EIC because my income exceeds the limits.
My divorce was in March 08. The divorced was modified in 2011, giving me sole custody and the right to claim the minor children for the tax year 2011 and further. here is the problem- my son lived between my ex-husband and I for the year 2011. The ex husband had him for 6 months 7 days. If he had him over 6 months but I have sole custody and an order giving me the right to claim him…can I still claim him? I am over the limits for EIC, so I am not filing for this.
I’m sure this has already been answered, but I just have to know for sure. When my ex and I divorced she agreed that I get to claim my son. It is written on the divorce papers and it is signed by my ex and I, and of course also notarized. Because of that agreement I claim my soon on my W-2 as a dependent which means that less taxes are taken out. Well, this year she claimed him and didn’t ask or tell me about it. I found when I filed my taxes and now owe over $700 to the IRS. I live three hrs. away from my son so that may not help with the EIC, but aren’t divorce decrees a legal contract specially when it clearly says that my ex gave me the go ahead to claim my son? Thanks in advance and I apologize if this has already been asked.
Hey Jackie,
I think you’ll win the audit too. (And if you’re even in St. Louis, call me, we’ll have coffee and compare notes on who’s got the strangest family set up!)
I have a wierd situation. (Don’t judge me! 😉 )
I am engaged to my estranged sisters ex-husband. We have been together for 6 years and he has full custody of their 3 sons. We thought it might be good for our middle son to live with her as he was having some “problems” and we though maybe he needed to have space from the other kids at our home (we have 5 kids at home) and needed some one-on-one time with a parent.
In May 2011 we found out that she was neglecting him and domestic abuse between her and her boyfriend. So we immediately kept him from going back when we had him over the weekend. (She only had visitation at our discretion and she hasn’t seen him since May 2011.) She has never paid child support (even when he lived with her we paid for his clothes and any necessities) but when i went to file my taxes it got rejected. (I wondered if there was a reason why she wouldn’t give back his social security card and birth certificate, now I know why)
Anyway, I file with my daughter, our son, and our (their) 3 boys as my nephews (which is what they are).
I mailed in my return as I can prove that he lived with us for 7 months last year.
Is there any way that I will get denied? I have claimed them before; and she has no legal right to them. She isn’t even allowed to have visitation without our approval. (not that she’s has even tried to see or call them) I don’t even believe that she worked last year, so maybe her boyfriend claimed him. If that is the case then I know I will win the audit.
What do you think?
Hey Jackie,
The answer to your question is: it depends. If your husband’s ex is living with a realtive–then that relative probably does have the right to claim the boy. But, if she grabs her homeless brother and tells him to claim the child so that she can get EIC–well then that’s fraud and that’s a pretty serious tax crime. So you kind of need to assess the situation. Maybe you should let her know if she happens to be breaking the law, she could go to jail. (Okay, not likely for a first offense, but repeat offenders can see prison.)
One thing you cannot do is have the ex collect EIC fraudulently and then make her pay you for the fraud. (You can’t go to the judge to ask him to do that–that would be a big no-no.)
Now, since you do not have the boy living with you for more than 6 months–you can never claim the child for EIC purposes. Never. You could ask the judge to let you claim the exemption and child tax credit–or you could save yourself some money and go to the ex and ask her to sign the 8332 to release the exemption and child tax credit to you.
You’ve got some options here. Just make sure that you stick with the legal ones. I know you wouldn’t do something illegal intentionally–that’s why I spelled it out for you so you’d know. (I wasn’t thinking you were trying a scam kind of thing.)
Hey Colin,
There’s a big difference between “custody” in a divorce decree and “custody” as far as the IRS is concerned. In the eyes of the IRS, you are the custodial parent. You claim the tax benefits.
You’ll have your work cut out for you, because I’m guessing he’ll claim and fight you for it. But the tax law is on your side. It’s your case to win. (I’d say good luck, but you don’t need luck–you’re in the right.)
@Matthew,
I’m sorry buy you’re not going to like my answer. You were divorced in 2010–that means that mailing your divorce decree to the IRS was worthless. Here’s more information about that: http://robergtaxsolutions.com/2012/01/court-ordered-exemptions-and-the-irs/
Bottom line–your attorney didn’t know the IRS rules and you got burned. In fairness to your attorney the IRS changes rules when they want to and they don’t really care about what the divorce lawyers say. But you might have to go back to your attorney to get him to enforce that your ex sign the 8332. Sorry.
I would also like to mention, that it is joint custody. He lives with her but we have him every other weekend, every other holiday, a lot of the summer and a couple weeks throughout the year.
My husband and his ex wife have one child. Their divorce agreement says that she claims him every other year, and my husband claims him on the other years. We are fine with this and really don’t want to cause problems, but we do pay A LOT of money for this child in support, insurance, medical bills, any activities he’s in, school supplies, etc., and she hasn’t worked in about 2 and a half years. We found out recently that since she has been unemployed, she will just have her fiance or her sister claim him. Again, we really don’t want any problems, but would like to know if she is not working, should she still get to have someone claim him, or would that be my husband’s right to claim him every year then? Also, if it is NOT ok for her to be doing this, would this be something we could go to court over to have a judge order her to pay my husband, or would we have to go through the IRS, and if we had to go through the IRS, how long would we have?
Hi
My wife’s Ex has sole custody of their 16 year old, though he has been living with us exclusively for the past 2 1/2 years. Now the Ex is saying he is going to claim the kid when he files his taxes this year, which is really going to mess things up for us.
My question is, even though he has full custody, does he have the right to do this, even though he has hardly even seen the kid the past 2 years? In the last 12 months the kid has not spent 1 single day with him.
My ex and I divorced in 2010 and my attorney did not know about form 8332. My divorce decree states that I get to claim my oldest son in years 2011 on without any conditions. I sent a form 8332 (return receipt) to my ex for signature without any expectation that she would sign (hostile). I filed electronically and mailed a copy of my divorce decree which is signed by both of us as TaxAct printed out that I had to mail the physical document. I included a letter explaining the situation. My return was modified by the IRS removing the dependent exemption. I do not know if my ex has claimed my older son. Was it a timing issue since I mailed my divorce decree about 2 weeks after electronic submission of my return? Can I just go to my local IRS office to settle the issue?
Hey Kristi,
first, thank you for your service to our country. (We’re an armed forces friendly company.) Second, can I borrow the phrase “dirt bag sperm donor”? It’s kind of catchy. Actually, it’s hilarious.
But you weren’t writing to make me laugh. You need help. She’s your daughter, the right is yours. You’ll need to paper file–does your husband have a Power of Attorney so he can sign the tax form for you? I’m assuming so.
Do the whole paper filing–you should be good to go.
Hi Linda,
I think you’ve already answered your own question–you think your ex has evil plans…then you’re probably right. Here’s another good reason not to do what he’s asking–it’s against the law to file a return claiming EIC when you do not have custody of a child! It’s income tax fraud. If you let him do it, then you’re committing income tax fraud.
How will anyone know that you’ve committed income tax fraud? Well, an evil ex (because those are the people who are most likely to report tax fraud) might file a form claiming that you’re committing a fraud–but he won’t sign it–he’ll say he’s a neighbor or something.
Look, I’ve seen some really ugly stuff. And you’re already suspicious. You’re suspicious for a good reason. Trust your judgment, your radar is working just fine.
Hi Pam,
sounds like you’ve got a tough one on your hands. Technically–you’re the winner here so paper filling is going to be the way to go. It’s probably worth talking with the step mom about it–I know awkward–but maybe the two of you can work out a compromise. It sounds like she was there for you when you needed her so she at least deserves a heads up that you’re filing.
Alright, so my daughters dirt bag “sperm donor” claimed her on his taxes this year.. SURPRISE!! Nothing like getting an email stating that your return has been rejected. Let me fill you in a little… I have custody, married, live over seas (military) and have had her since the day she was born. School, medical records, anything that has to do with her is linked to me! And the pos hasnt paid a dime in child support. How does this even happen?? How do I fix this???
My ex wants to file as head of household although I am the custodial parent. He states I will receive a good sum. My concern is he has evil plans to gain when my son turns thirteen. Perhaps even argue custody for claiming head of household for several years
& I do have DR visits , mail pharmacy for my son mailed to my address(he is diabetic) & DMV picture ID & Things like that To show my sons with me now?
my sons step mom claimed him, i had custody of my son til the middle of june, then his dad got custody , my son was 16 and hard for me to handle…so when he went to his dads to live he was with him for 5 months, during that time my sons dad & wife had split up so my son lived with her for a coupe of months..anyways my son turned 17 in november & moved back with me, i didn’t have 2500 to pay for custody to go back to me , but i had my son for 7 months out of the year , i went to file my taxes & step mom did too… any help for me were to go from here?
@Gina,
No your ex doesn’t have a right to claim your child. He can only do that if you file a form 8332 and allow him to. Even if you do that, he cannot claim your child for an Earned Income Credit.
Hey Charo,
You might have a problem. Here’s the deal. Does your ex have the right to claim your son? If the answer is yes–then his wife also has that right because they are married. A step parent has the same rights as a parent as far as claiming children.
Now, if your ex did not have the right to claim your son–then neither does she. And then you’ve got the right to fight back.
My guess (mind you I’m guessing so maybe I’m right, maybe I’m not) my GUESS is that you have custody of your son. I’m saying that because your ex is supposed to pay child support. I’m guessing–that your ex probably has something in your decree about having the right to claim your child for tax purposes. (This is where I could be way off because it’s totally stupid to claim a child that doesn’t live with you and you don’t have a decree allowing it–but never underestimate the stupidity of someone’s ex-spouse.) So if your ex is entitled to claim your son under the divorce decree–that only gives him the exemption and the child tax credit–not EIC.
SO- are you following this–if the new wife is getting EIC–well then she’s not supposed to get that–if your income is low enough–you get the EIC for your son (and the head of household filing status as well.)
So–if they shouldn’t have claimed your son–then you go ahead and do the whole paper filing thing that’s explained in the post.
Hi..I just filed my taxes and claimed all three of my kids and it was rejected because my ex boyfriend claimed one of my kids which is his also but she has lived with me all 12 months of the year since shes been born..He gets her every other weekend and pays me child support bi weekly..but we havent went to court over our daughter yet..Does he still have the right to claim her even though she lives with me and i pay for all expences?
What do I if my ex-husband allowed his wife to file our son so he wouldn’t have his taxes taken for back child support
Hey Vanessa,
Did your ex claim you as a dependent? That’s identity theft–and there’s a whole other form for that: http://www.irs.gov/pub/irs-pdf/f14039.pdf
But other than that–follow the paper filing procedures outlined above in the main blog post at the top. That’s what you need to do first. Then file the identity theft affidavit later.
Hi Noslen,
Congratulations on your wedding! So you got married in 2011, right? That means you were able to file your tax return as married filing jointly claiming your 3 children. You see, as far as the IRS is concerned, your step children are your children–legally.
So the kids live with you, correct? That means that you are entitled to claim them. Now, if your wife has some kind of divorce decree or something that entitles her ex to claim the children–he can only claim the depency exemption and the child tax credit–not EIC. But–there had better be some paperwork allowing that first, otherwise he doesn’t even get that. You’re looking pretty good from this corner. Just pull the paperwork that the IRS is requesting together. I’m thinking a copy of the marriage license might also help you. Good luck.
@ Jessica,
Hey Girlfriend, it’s cool. An EIC audit is just that–they’re going to look for you being the head of household, which you are and all that stuff. Breathe. You’re in the right, you’re a good person, you’re a good mom. Okay? Forgive me for sounding informal but it sounds more like you need the girlfriend speech instead of the tax expert speech. But I’ll do two for the price of one tonight!
Now let’s talk about your taxes. Your 1099 is your lifeline! The 1099 proves that you had real income–it’s the lifeblood of a Schedule C audit. Because, unlike rich people who try to make it look like they have less income–many EIC audits are for people who have no income and make stuff up. So bless that accountant who made the 1099 for you!
Now–about your tax preparer tweaking things. The big question is this: is she finding you every legal deduction you can possibly claim? (If yes, then that’s good.) Or is she making stuff up? (That’s bad–you’re going to fire her and get a new accountant.) The point is–I’m really good at what I do–but sometimes the stuff I tell my clients sounds downright crazy. (Seriously, I had a client measure her bathrooms, laundry room and staircase to get her a bigger home office deduction. Crazy? Absolutely–did I reduce her taxes? You betcha! Legal–definitely, I like my job and don’t want to go to jail.) Really you’re the only one who can tell if your accountant is cheating or not–but if you think something’s hinky you have the right to ask and she had the duty to explain it to you in an understandable way.
But–bottom line–the EIC audit is about where the child lives–and it sounds to me like you’ve got everything you need to prove it.
Oh–and one more thing to make you feel a little safer–your tax preparer set you up to paper file your return right? She’s not going to do that if she thinks your return is hinky. We, as professional tax preparers, are subject to paying a $500 fine for every EIC return we process that we haven’t done our “due diligence”. That means that we ask the proper questions and are satisfied that you truly are the rightful claimant and all that legal jargon. A pro won’t mail an EIC return that doesn’t “feel right” because we can’t afford the $500 penalty per return! So unless she’s a freakin’ idiot–she wouldn’t mail your return if she didn’t honestly believe in you. And I believe in you too–so get some rest and feel confident! Living well is the best revenge and I think it’s time you started some revenge! Live well, and be happy. It will make your ex miserable.
@Walter,
So Walter, you ask what you should do. I say you should read the instructions about what to do that are at the very top of this blog page. If you truly have the right to claim your granddaughter–then you should read the blog and follow the directions.
Hi Will,
you don’t need an audit. All you need is your form 8332. You’re good to go. Because you sound like the good Dad, the polite thing to do is to explain to your ex (or ex’s mom) that you are filing for the exemption and child tax credit as is your right (and you’ve got the 8332 form to prove it) and that gramma needs to amend her return to take off the exemption and child tax credit.
You do not have to do the good guy thing, you can just go ahead and file. It just seems to me that you sound like one of the good guys and giving gramma a chance to amend her return is the polite thing to do. (Remember, she can still have the EIC and head of household so she’s only losing the exemption and child tax credit. Not that bad.)
Hi Heather,
I’m glad Mike could help you out. That’s the best part of a forum like this is people helping each other. About amending your return again–yes, it’s not the best thing in the world to have to do, but I’d go ahead an amend–‘cuz if you don’t you’re gonna have a problem.
Stuff happens and you’re trying to make it right. Remember–if you amend before April 15th–then it’s like the mistake never occurred in the first place! So, in your case, amending is definitely the right thing to do.
Thank you very much, Admin Roberg!
my ex claimed me and our daughter this year without my permission so my tax refund was rejected what do i do now?
Hi me and my wife were married in 2011 she has two other childeen from a passed relationship and a newborn from myself thing is ive been living with her and the children for two years now… i efiled feb 2012 and was informed that i was getting audited now i dont know for what I’m guessing the dead beat claimed them but I’m wondering if thats the case where do i stand… i filed for both kids i pay for everything plus do the doctor thing and any other thing that ever comes up. thanks in Advanced
First, let me thank you for being proactively helping so many people in similar situations. This is a very devastating and terrifying experience to have to go through, especially when suffered alone. Let me explain my situation to you, and prepare for much catharsis…
I divorced my ex-husband in 2010, and attempted to get full custody of my son because his father was abusive, but because of an inability to pay steep fees for a Guardian Ad Litem, was forced into agreeing on joint custody. In our divorce decree, it states that we alternate years for claiming the child on income taxes. There is no statement discerning between the right to the child tax credit and deduction or the EIC and head of household status, and who has the right to claim them, since custody time and expenses split evenly and to each their own. I claim our son on even years, and I do recall claiming the tax credit and HOH/ EIC. I do not believe I was in the wrong, but am starting to question that, as my situation just got much stickier.
In mid May of last year, my son’s father abused him. We are still going through court proceedings, trying to get legal custody, and his criminal trial is coming up soon but nothing to this date has been officially resolved. Either way, I have a massive number of ways that I can prove to the IRS that my son has been living solely with me and attending school here since that date in time, which amounts to well over half of 2011. In court, we had requested that he give up the child tax credit/ deduction, but of course, he refused. No big deal, right? Well, I went to file my tax return today without any knowledge of such incidents as you describe above occurring, and bam! Return rejected. This is the difference between me (and our son, essentially) receiving $2,000 back and, essentially, owing $1,100 which I cannot afford! After all we have been through… and now this?!?
I am scared for the audit to come, after reading on this topic a bit. I took my tax preparer’s advice and mailed my tax return exactly as we had prepared it but received the efile rejection, so there is no turning back. This gets more complicated. I am an independent contractor (so essentially, I am self-employed) but as a measly food delivery driver. I make less than $20,000 so by no means am I in league with any high rollers! But I am fearful that my ledgers are not good enough for an audit, if they are to ask for proof of income and deductions. Really, the only things that I have to keep track of are cash tips and the mileage I put on my car while working. My employer has software that tracks all credit card tips and delivery fees, and his accountant sends me a 1099 every year.
But tax preparer’s tend to tweak information as they see fit to maximize one’s returns, which never dawned on me as being a legal “grey area” until today. Is the audit I am imminently facing now, over (what I assume to be) my legal right to claim an EIC that he essentially stole from me, going to cause me problems in this department, too? I can’t afford to not only lose my tax refund, but to have to pay for the lack of any deductions! And then have to worry about my ledgers being amateur, too? I am so exhausted from being victimized over and over again from every angle he can possibly pull off. Please tell me there is good news… Please tell me that this kind of audit is not full-scale and that I am the rightful receiver of the EIC… I can’t handle much more abuse!
Hi Adrian,
Thank you for your service to our country. So how do we fix this problem? You don’t need to file a tax return, as you have no taxable income. But–you are allowed to file a zero balance return. Here in Missouri, we used to do it all the time so that we could e-file the Missouri state return. (Now you can e-file Missouri separately so it’s not necessary any more.)
So you can go ahead and file, claim your kids. It will at least put a flag on their social security numbers.
Now–here’s where I’m going to be a little nasty–you might want to let your ex know what you’re going to do. You see, you can sign an 8332 allowing her to claim the exemption and the child tax credit–that’s perfectly legal. So–what’s in it for you? That’s for you to negotiate. It’s just a tool that you can use–bring a little equality to the relationship. The 8332 is your power play. Use it as you see fit for the benefit of your children.
Hi Courtney,
Here’s how I see it. You should not have claimed EIC for your child. You never meant to do anything wrong. All you need to do is amend your tax return. If you do it before April 15th–then your permanent record is that you never filed for EIC. So amend your return.
You hired your tax guy–he blew it. He needs to fix it. He doesn’t need to talk to your ex’s tax guy. He only needs to hear it from you.
Nice people make mistakes. It happens. Responsible people take steps to fix them. Sounds like you need to put a little pressure on your tax guy to do the right thing.
Hey Harry,
Yest you’ve got recourse. You’ve got a perfect example of someone who should do the paper filing. You have custody and the court right to claim the exemption. Double whammy.
Go for it, claim your daughters–it’s your right. Your ex will eventually have to pay back the EIC that she’s illegally claimed,and their will be fines and penalties. For what it’s worth, it seems that it takes quite a bit of time for these people to be caught–but eventually they do get caught.
Hey Tamara,
It sounds like your ex is being a bully. The best way to deal with a bully is to just send him over my way and I’ll run him over with my little blue car. (Okay–no, my lawyer says I can’t say that online. Sorry. I have to take it back.)
So here’s the next best thing. (Ok, maybe not the next best thing but at least here’s something I can legally talk about.) Let’s fight back.
First–we need to make sure you’re 100% in the right. The tests for qualifying child are age, relationship, residency, and joint return.
First-joint return–your children are much too young to be married, no-brainer you pass.
Age–same thing–young, you pass.
relationship–your sister, because she is your sister, is your children’s aunt, that makes the relationship pass.
The last one–I think you’ve got, is residency. Did your children live in the United State with you for more than 6 months? I think you’ve got this one too–if so, you’ve got a good case. If not, then she’ll probably lose because your ex is the parent.
So, I think she’s got a case.
Now–to file with the one and amend with the other–or paper file with both–that’s the question. To be honest–it looks better to the IRS if you file the misclaimed child on the original return–meaning it’s better to paper file. But–there are kids to feed and rent to pay so it might just be necessary to efile what you can and amend with the other child later. You and your sister do what’s best for your family and don’t worry about what’s “technically” better. The IRS does understand about feeding the kids. (I know it doesn’t always seem like it, but there are some genuinely human people working there. They do understand about stuff.)
Good luck.