Can My Boyfriend Claim My Child by a Different Father on His Tax Return for the Earned Income Credit?

A boyfriend cannot claim your child for EIC.

No matter how good a “Daddy” is, the IRS has very strict rules about who can claim the EIC tax credit.

 

 

Short answer: No.  Do not let your boyfriend claim your child that is not his for the Earned Income Tax Credit.

 

Long answer: Noooooooooooooo! Sorry about the bad joke. But really, no he can’t and here’s why:

 

First, and most importantly, it’s against the law. Seriously – claiming a child that you don’t have a right to claim on your tax return is income tax fraud and that’s a federal crime.

 

But how would he get caught? Good question. The most likely way he’d get caught is if someone else tried to claim your child on their tax return, like the child’s real father or a grandparent. Someone might have a problem with you or him and turn you in to the IRS. It’s one of the most common questions I see on the internet: “How do I turn someone in?” I’ve worked on a couple of cases where an older child has accidentally turned someone in by filing paperwork for school which somehow got into IRS records. You don’t want to take the risk.

 

But the most dangerous person as far as your boyfriend is concerned is you. Let’s say you decide to let your boyfriend claim your child and claim the EIC tax credit because it works out to be more money if he does it. You’re breaking the law too, but when push comes to shove you can break into tears and say he forced you etc., etc. It’s not against the law to not claim your child on your tax return, and proving that you “conspired” with him to commit tax fraud would be hard to do. So let’s say that the boyfriend dumps you and goes out and buys a nice engagement ring for his new girlfriend with that tax refund. I’m guessing that would make you hopping mad, right? Furious! You want to get even, don’t you? What better way to get even with that scumbag than to report him to the IRS. You see why he should be afraid? Very afraid!

 

So what could happen to my boyfriend if he did get caught? The maximum EIC for one child is $3050 ($5036 for two, and $5,666 for three.) First, he’d have to pay that back. Let’s say we’re just talking about one child, he’ll have to pay back $3050 right off the bat. Then he’d also have to refund the $1,000 child tax credit, so now we’re up to $4050. Now he’ll also have lost the head of household status which gave him a lower tax rate plus he’s lost the exemption so we’re looking at maybe $5,000 (or more if we’re talking about more children). Then the IRS will tack on fines, another 25% or $1250 for late payment fees, and most likely another 20% or $1,000 for under-reporter penalties so you’re looking at about $7250 in taxes owed. Ouch!

 

It’s also possible that he could be criminally prosecuted. Personally, I have never worked an EIC case that has gone on to the criminal division, but it does happen. What good is your boyfriend to you if he’s sitting in jail?

 

Don’t create problems for yourself by committing tax fraud. It seems like easy money and the temptation is great. You probably even know people who’ve done it and never had any problems. But if you want to feel safe and secure and get a good night’s sleep, file a correct and proper tax return.

 

You may also be interested in these posts:

My Ex Claimed My Kid: Now What Do I Do?

Eight Basic Rules to Qualify for the Earned Income Tax Credit

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If you need an answer right away, here are some links that might help.

 

Answers to EIC Questions

 

How to find free tax preparers

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How to find your local IRS office

 

132 thoughts on “Can My Boyfriend Claim My Child by a Different Father on His Tax Return for the Earned Income Credit?

  1. Hi Krissy,
    Your fiance cannot claim your daughter as his step daughter until he actually marries you. Until that time, no EIC on her.

  2. My fiancee claimed my son on his taxes, we got a partial refund and paper work from the irs asking for proof of relationship… my question is, were getting married next week, if i sent them a copy of the marriage certificate would that qualify for this matter or would we have had to marry last year?

  3. I live in Arizona I’m not working and my boyfriend is the only one working we all live in his house on Navajo tribe land my children’s father doesn’t help us with living cost I have filed for child support but he refuses to go back to work and help me what would be some great advice? I was thinking of giving my boyfriend temp custody? Or having him adopt my kids, but that would cut off the original father of any obligations right?

  4. My fiance and I have a son together and I have a daughter by someone else. So my son and my daughter are half siblings by blood. He would be claiming eic credit for our son ..would he be able to claim her as his step daughter and what might happen if he did so?

  5. Hi Cynthia,
    First, and most important – you need to determine if you really are common law married. I talk to people all the time who think they are common law married and find out per IRS rules that they are not. For example: I live in Missouri and Missouri does not recognize common law marriage. And, you’ll need to actively go fix the problem, the IRS won’t just give you your money back. You’ll need to file whatever reports, etc. I suggest you hire a professional to help–and not the folks who left you out to dry when the IRS seized your taxes over the 2014 issue. Good luck.

  6. I have been with my spouse 7 years, we always file married filing jointly, we are common law married. I’m 2014 I was unable to file with him because my ss# did not match my dob due to identity theft. The place we went to said he could go ahead and claim the kids since he takes care of them. We received a letter staying he owed all the money back because he cannot claim them since he is not their biological father. They seized our taxes this year over 8,000 dollars. We amended the return for 2014 since I had gotten the identity issue taken care of, it says we are owed an additional $984. My question is will we get back the money they took since we corrected the problem?

  7. Hi Lauren,
    Kansas recognizes common law marriage. But since you are common law married, then you are filing your tax return as married filing jointly, so you’re claiming your son on your tax return with your husband.
    Now if you are not filing jointly – my question is, why not? If you’re presenting yourself as married why aren’t you filing jointly? Of course, you could file as married filing separately – but that would lose you any Earned Income Tax credit if you would qualify.

  8. Hi Brian,
    If you claim your kids and the return is rejected, then you know someone else claimed them. If that’s the case, then you file a paper return. Only claim what you are entitled to – the exemption, not the Head of Household or the EIC – since if someone else claimed them – you’re going to have to pass the audit and you’ll only pass for claiming the exemptions.

  9. Hi Justin,
    I take it that your girlfriend is not your daughter’s mother. Do not let her claim your child. Claim your daughter on your own return. Do not let your girlfriend claim her, or the preschool. You don’t want to run foul of the IRS on this one.

  10. I have full custody of my daughter me and my girlfriend are ingaged but not married we are both filing tax returns but I only made 6000 so I am letting her claim my daughter on her taxes so we can get the most back (is this allowed) but can I claim or can she claim my daughters preschool (she helps me pay it) if it’s set up in my name

  11. My kids live their mother (my ex), she owes money due to some loans. Usually I claim them because the state or federal just take her return. We had a falling out and now she does not want me to claim them, she is not claiming them either. She wants to let someone else claim them for her in order for her to get some money out of it. I’m okay with her claiming them herself, but if she does not claim them, I feel like I should be the one to claim them, not just one of her friends or siblings. I told her I was not okay with this, I have a feeling she is going to do it anyway. How can I find out if somebody other than her or myself claimed them, and who do I contact. What can I do if this happens?

  12. Hi June,
    This is tricky, so I’m going to geek out here and cite a court case. I say – yes, your husband may still claim the children. The court case is Tony Ray Duncan v. Commissioner. Here’s a link citing the case: https://www.youtube.com/watch?v=Bm5HKlQ6nGM

    Now if you actually read the case – it says you can’t use this as precedent for any other tax case. BUT – the IRS always uses old tax cases as precedent. So, I would go ahead and have him claim the kids and the EIC. But I’d save the link to this court case as back up in case the IRS ever decides to go after you about it.

  13. Hi I live in kansas and my fiance and I are common law married. We have insurance together as a common law couple and present ourselves as married. I have a son from a previous relationship and have court papers that say his biological dad can not claim him on his taxes (not that he does them) he hasn’t seen his son in server all years. Can my common law husband claim my son on his taxes?

  14. I divorced my husband but got back together 2 months later. I had 3 kids that were his step kids. Does terminating our marriage terminate his relationship with them? Since we are together, and I do not work, can he claim them as dependants and get the EIC?

  15. Dear Brook,
    Sorry but no. Once you are married – fine. Until then, he may be able to claim your daughter as a dependent only, but not Child Tax Credit, no EIC.

  16. HI! I hope you can help me! I got married in June of 2016. I had a daughter from a previous relationship, but the father is “unknown” there is no name on the birth certificate, he is out of the picture. However, my husband hasn’t adopted my daughter. Can we still fine jointly or would it be better to file separately? Will the fact that he’s not legally her father affect our taxes? If it helps, we both work full time and I got to school full time.
    Thank you!

  17. Okay now I have a question. I’m high risk pregnancy and am due in March I haven’t worked at all this last year. My fiance works and pays for everything and we all lived together last year. I have court papers saying that I get to claim my 9 year old daughter and any tax credits every year until she can claim herself. Now since I haven’t and can’t work and my fiance does and will be her step dad shouldn’t my filing status default to him since her dad can’t claim her and she has lived with him all year and I am her custodial parent? Shouldn’t he get the child tax credit??

  18. Hi Alicia,
    If your ex is married, and he’s the custodial parent of the kids, then his new wife can claim them. She is the step mother.

    Now, if they are not the custodial parents, and she’s claiming the kids on her own return, that could be an issue. But hey, if you’re the custodial parent, then you can claim them for EIC and head of household and then you’re not reporting them, you’re just doing the right thing – and being a royal pain in their backside too which can be kind of fun. (I guess I just have a little mean streak in me today.)

  19. I have a question!! My ex husband has legal right to claim are 2 kids, but he doesn’t because he owes back child support for another child. I asked him if he was getting are kids taxes because of the child support he said he has his ways. I have a feeling his girlfriend or new wife is claiming my 2 kids! Can I report that??

  20. Hi Oscar,
    Since you don’t have custody, and you don’t have any legal document that allows you to claim your daughter, then you shouldn’t claim her on your taxes. The boyfriend should not be claiming your child. In your case, you are probably better off just reporting him – or waiting until you are able to claim your daughter yourself.

  21. First off, let me thank you for doing all of this! THANK YOU!
    I have read the posts and am still a little confused about my situation. My daughter, born 6/2015 and has been with her mother in another state. As of now, I do not have custody or anything legal. I will do that next week. I do help her with the expenses and have proof. I work part time and am a full time grad student. She started dating Mr. X in Sept/Oct 2015 and I recently found out that he claimed her on his taxes. From what I know they do not live together but he stays there often. She does not work and has been on welfare and he works part time. I have been trying to work with her but she is still resentful. Hence the reason why I am going to court next week to start the process of partial custody and/or trying to get full custody. I was going to report this to the IRS but read that it may be a better idea to claim my daughter first. However, this was last year and not this coming cycle. What would be your professional opinion? Once again, thank you so very much.

  22. Hi Michael,
    The court order only allows you to claim the exemption, not head of household filing status or the earned income tax credit. Your exe’s husband, filing jointly with your ex, does have a legal right to claiming your child – for EIC, but not for the exemption and the child tax credit. This post might help explain it. Split Exemptions

  23. Hello I have court ordered papers saying that I pay child support and that my ex wife has to give up all tax return rights to me for claiming my child we was divorced back in 2001 or 2002. She doesn’t work and collects an ssi check but her current husband claims my daughter every year. I’m just wondering if I’ll m getting screwed on this cause I’ve never been able to claim my own child. Thanks

  24. Dear Cierra,
    Your boyfriend sounds like a great guy. But you read the article. My answer doesn’t change just because your boyfriend sounds like a great guy. (Okay, I might be nasty if he sounded like a jerk. It’s hard to be nasty when you sound like such a nice couple.)

    Here’s what you can do.

    1. You have one child together – so that makes your boyfriend head of household.
    2. The child you have together qualifies BF to claim EIC for ONE child ONE CHILD ONLY! That same child also qualifies for the dependency exemption, and the child tax credit.
    3. Your boyfriend may claim you as a dependent.
    4. Your BF might be able to claim the other children as “qualifying relatives” – which is a type of dependent – but won’t qualify for EIC or the child tax credit.

    If he wants EIC and the child tax credit on your other kids, you two will have to get married, or he will have to legally adopt your children.

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