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

Posted on: 01/6/12 152 Comments
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

 

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

  1. Ok so I did my taxes online as well as my fiance’s. I didn’t realize putting in my daughters daycare credit on mine would mean I was claiming her. He always claims her with me being in school still. So of course it is now rejecting his tax return. I have mailed an amendment form but it could take 8-12 for it to be fixed having her off my taxes. Will he have to wait that long to file his taxes due to my mistake?

  2. Hi Ann,
    I honestly don’t know. In the future, if your brother divorced his wife, he would still be considered the step father, so he would still have a claim. But going backwards, I’m just not sure. I would say he’d still have to repay the money–but I haven’t been able to prove it. (You don’t want me to be able to prove it.) Good luck.
    Please post what happens with your brother’s case so we know. I suspect that different IRS agents would treat the case differently. If the agent on the case goes against your brother, I’d ask for an appeal–it’s worth a shot getting a different response if you need one.

  3. I have a question my brother has been reporting a child that is not his for 5 yrs and not reporting the mother cause she is illegal..know the irs came back wants money or show prof..he got an attorney and they told him to get married he did.but my question is will he have to repay that money back even thou he got married..

  4. Hi Shar,
    Good question. I’m assuming that you’re not talking about EIC because the whole post above is about how the boyfriend cannot claim EIC at all. No way, no how.

    So then the question becomes, can the boyfriend legally claim the children as dependents for the dependency exemption? And it would only be the dependency exemption — nothing else. The answer would be “maybe” if he met all the other criteria, which he probably doesn’t. But more importantly, it would most likely be a stupid waste of tax credits.

    Since the children don’t live with your son, he can’t claim EIC as married filing separately, remember he’s still married to the mother.

    If she has no income, (and they’re both straight up moneywise), they could still file jointly and possibly claim EIC and split the refund between them.

    If things are too ugly, he may be able to file as married filing separately and claim the dependency exemption for the kids. If they want to file separately but are on somewhat speaking terms, then have options of working out how the kids are claimed. There’s options if they can talk to each other.

    The one option not on the table is letting the boyfriend claim the kids for EIC–that’s illegal. So if the wife wants to go that route, then your son can just file as Married filing separate and claim the kids as dependents and he doesn’t really need to ask permission. If the boyfriend files second, his return is automatically rejected. If the boyfriend files first–it’s gonna get flagged by the IRS and he’ll have to explain how he thinks he can claim those kids. (Which he’ll lose.)

    Note–this is important: even if your son were to say “Hey, wife’s boyfriend, I’m going to let you claim my kids on your tax return for EIC,” it would be illegal. Just want to make sure you understand that.

  5. Jan,

    My son and his wife are separated and have filed for a divorce. They have been living apart for all of 2013 and his wife lives with a boyfriend. The boyfriend is planning on claiming children on his income taxes this for 2013. The mother does have temporary physical and legal custody of the children. The boyfriend is not the father of any of them. My son pays his child support and sees the children every other weekend. Can the boyfriend legally claim the children without the approval of their father?

  6. Hi nblanco,
    Your husband my claim your son (his step son) on his married filing separate tax return. That’s perfectly legal.

    Now, since you have foreign income, remember there’s a credit for taxes paid to a foreign country.

    Foreign income isn’t necessarily that bad. It might be worth your while to file jointly. But if you’re really worried about it, it’s fine to let your new husband claim your child. The key here is that you are married, that give him a lot of legal rights that a “boy friend” wouldn’t have.

  7. My husband and I got married last year (2012). For 2012 I have income from a foreign country (PR) and I have a son (technically his step-son). I wanted to know if my husband could file married filing separately (because I have foreign income and I think it could be a mess) and claim my son as a qualyfying child and get the Child tax credit. Please help! I want him to file correctly but getting all benefits.

  8. Hi Julia,
    Your boyfriend is married to somebody else. Normally, that would force him to file as married filing separate–but because the two of you have a child together, he may be able to claim head of household because of that child. That would qualify him for EIC if his income is low enough.

    Since your income is under $3800, and you have lived with your boyfriend for the entire tax year, he could also claim you as a dependent. “Other” would be the category.

    It may be possible for your boyfriend to claim your children as “qualifying relatives”–meaning he would only get the exemption–no EIC, no child tax credit.

    You might want to play with who claims what. You could claim EIC but not head of household. But if you claim EIC–you cannot be his dependent. I’d run the numbers a few different ways to see what makes the most sense. I’m assuming that you should be treated as a family–all working together for the common good of the family unit.

  9. I have lived with my boyfriend for 16 months (in WA state). We have a four month old together. I also have two children from a previous marriage who live with us full time. Their father has no income and is not in their life. I made $3000 last year. My boyfriend financially supports all of us. He has been separated from his wife for three years but is still legally married. Can my boyfriend claim me as a dependent? Are my children from my previous marriage my boyfriend’s “qualifying relatives”?

  11. Hi Trisha,
    You win! You’re married to him! That makes your husband the legal step-father of your children.
    But here’s where you messed up–he didn’t claim you? why not? You should have filed as married filing jointly. The only other legal option is married filing separately and you can’t get EIC for that. So, married filing jointly it is. (Really important–MFJ.)
    Now, you will submit a copy of your marriage license as part of your proof. Also, the kids birth certificates showing you are the mom.
    You Trisha have a winning case. You just need to file as married–that’s your solution.

  12. What if the children lives with the boyfriend and you? You didn’t claim them because you didn’t have an income to support them and he did. Would you both still be in trouble for the boyfriend claiming them.? Considering he supported them all year long.

  13. I need help. i got married June 24th 2012. He lived with me since April of 2011. I have not worked I a on Disability but my husband works. We were not married for 6 months in 2012. We did our taxes and he claimed both kids bc he supported both of them. we got a letter saying to prove my husband and my children were in the same household, but we did not claim me. i have the letters from schools and doctors saying they have lived together. but now im confused can u please help me what to do.

  14. Hi Suheil28,
    Thank you for sharing your story. Real life examples are so much better than anything I say.
    Wait until your fiance’s return is processed before you file your tax return. Your return is going to be delayed because of the problem but eventually you should be able to claim your kids.

  15. My fiance claim my kids as stepsons but we are no married. Now we need to proof that theyre related and honestly i didnt know he cant claim them as stepsons. Thanks God I found answers here! So he recived a refund but obviosly not eic. He is ready to amend and take them off so i can claim them… Do i have to wait until the Irs process his amend return so i can file mine? I dont want trouble it was amistake that we are going to fix

  17. Hi Ben,
    The court document lists you by name? Not just your fiance but you, Ben, by name? That’s what you need. That would make your fiance’s son your foster child. Then you can claim him for EIC. If the document does not list you, Ben, by name as the boy’s foster parent–then you cannot claim him for EIC.
    Also, what date does the document make you the foster parent? If it just happened this week–well then you can’t claim EIC for last year.

  18. Hi Im getting married in march of this year I’m a stay at home mom, my fiance has supported me and my daughter 100% this past year. My daughter biological father has never claimed her and hasn’t been in her life. This is my first year being a stay at home mom and was wondering if my soon to be husband can fully claim me and her after march? My daughter and I have lived with him for 6 years and he has raised and financially supports her. I usually get the EIC for her but since I have no income this year can he get it for claiming both of us? Should we wait til after march when we are married to file or does it not matter?? Thank you for any help!

  19. I have a fiance and have lived with her since may 2010. We have a child together that I have paternity documents verifying I am the father. She also has another son that is not mine. This past tax season I claimed both boys and was audited by the irs. I sent documentation of the paternity and paperwork from courts and schools showing residency. They have penalized me for almost nine thou. I am the only income in the home. I have documents stating the courts have placed her son in our shared care. I am preparing to file taxes again and need to know how to legally manage this situation.

  20. Hi Mariw,
    So you have absolutely no income at all? Your ex is completely out of the picture? And your boyfriend has lived with you all year and has basically been supporting both you and your daughter, right?

    In this case he may claim your child for the exemption only. She is what is called his “qualifying relative” not his “qualifying child”. He gets no EIC, not Child tax credit.

    Here’s a questionaire to help you determine if he can claim her for the exemption: http://apps.irs.gov/app/ita/app/investigate.action?screenId=s1%40TLC_Dependents_Development_Screens_DEPLanding_xint&ts=1358650953318&ita=Dependents&factId=Dependents&entity=global&screenEntityInstanceName=global&itascreenid=Who+Can+I+Claim+as+a+Dependent%3F-s1%40TLC_Dependents_Development_Screens_DEPLanding_xint&screenEntity=global&entityInstanceName=global

  21. Hello,
    I wanted to know if my boyfriend can claim my 5 year old daughter? We have been living with him for a year + and i am not working at all.. hes been the 1 supporting us. And my daughters biological dad cannot claim her.. he doesnt work and hes not in her life.. so can my boyfriend claim my daughter?

  23. Hi Mike G–
    Your girlfriend needs to know that she can’t have her girlfriend claim her kids for EIC. Now you can’t get EIC either, but your girlfriend could give you the exemptions and child tax credit if she signs the form 8332.

    The child that lives with the grandma could probably be claimed by the grandma for EIC and the exemption and the child tax credit.

    The EITC assistant has questionaires to help you determine if you qualify for EIC: http://www.irs.gov/Individuals/EITC-Home-Page–It%E2%80%99s-easier-than-ever-to-find-out-if-you-qualify-for-EITC

    You won’t, but you might want to share the information with your ex. She can’t just hand over claiming her kids to anybody. She can hand over the exemption to you, because you’re the father. Not to anybody else. Am I making sense to you?

  24. Hi.. I have 2 boys they don’t live with me but I do pay child support but one boy lives with my ex girlfriend and my other boy lives with her grandma. I had recently asked her if I could claim them this year? and she said no because she can find one other person to claim her and both boys. She hasn’t work much last year she is supported by her girlfriend. So can her girlfriend claim her and the boys or I have no say so in anything? As far as my other son that lives with her grandma will she be able to claim him. Please help I need some answers

  26. Can my boyfriend clam my 2 year daughter? See he been there since day one she was born and have always buy her everything food, cloths,diapers and watever else she needs. Her father have just seen her like 3 times since she was born and never gave me child support or not gave me anything for her. Now i ask again can he clam her?

  27. Hi Sasha,
    The easy answer is to get married. Might not be an option, it’s just the easy answer from a tax standpoint.

    So–your fiance is the father, but he’s not on the birth certificate. So I don’t know how to prove that. What I do know is that you might have some trouble this year. Here’s why–the tax rules state that I (me, Jan as a tax preparer) have to do something called “due diligence” when I prepare a tax return for EIC. And that if I don’t make sure of stuff–that I (me, Jan) will have to pay $500 if I haven’t looked into your situation closely enough for the IRS.

    Now Sasha, you seem like a really nice person, and if you say your fiance’ is the father of your child, I believe you. But I’m not willing to pay a $500 fine just because I “think you’re honest”. Because that’s what the IRS will hit me with.

    So–you’ve got a problem there. Now if you’ve lived with your fiance’ for the entire year and you’ve had no income (or less than $3700) I have no problem letting him claim you. It’s the baby and the EIC that has me worried.

    I recommend adding the father to the birth certificate. You’ll need to file paperwork with your state. You’ll probably need to have some documents notarized and things like that. (Different states will have different rules.) Now, if you’re married, there won’t be any problem with him claiming your child–but as long as you’re not married, he should be on the birth certificate if he wants to claim he is the father.

  28. I’m a stay at home mom and am living with my fiancé. We have a fifteen month old daughter together, but she has my last name not his, and he is not in her birth certificate. Is there any way he can claim her? Also how does it work on him claiming me? I would appreciate the help.

  31. Hi Michelle,
    Are you sure we aren’t related? You sound like you must be part of my family with your step son’s step father. It’s a little confusing.
    But let me try to straighten things out a little. Your step son’s birth mother is living with a man and they claim to have a common law marriage. Right?
    First, if they were really married–then it’s a no-brainer and yes he can claim the child (assuming that the child really lives with him and the mother.)
    But, you’ve thrown in the common law issue. The IRS accepts common law marriage only in states that accept common law marriage. The common law marriage states are: Alabama, Colorado, Georgia, Idaho, Iowa, Kansas, Montana, New Hampshire, Ohio, Oklahoma, Pennsylvania, Rhode Island, Texas, Utah and Washington DC.
    But they can’t just live together and say they’re common law married, each state has it’s own rules about it. Here’s a link for more information: http://www.uscis.gov/ilink/docView/AFM/HTML/AFM/0-0-0-1/0-0-0-26573/0-0-0-30679.html
    So, a step parent may claim a child on a tax return–if he is really a step parent my marriage. You’ll have to do a little more digging to determine if their common law marriage is legit.

  32. can my step-son’s step father claim him if the stepfather and mom have a common law marrige? is that legal?

  33. Hi Erika,
    Since your boyfriend doesn’t have custody of his children, he can’t claim them for EIC. Since their mother doesn’t work, he might be able to persuade her to allow him to claim the kids for their exemption and child tax credit. His ex would have to fill out a form 8332 alllowing him to do that. She would keep the head of household status and EIC if she did have any income to claim, but he would qualify for the $1,000 child tax credit that she probably doesn’t qualify for.
    It’s called splitting an exemption and it’s legal if you do it right. Here’s more information for you: http://robergtaxsolutions.com/2011/11/split-exemption-claiming-one-child-on-two-tax-returns-%e2%80%94-the-legal-way/
    Sometimes it’s difficult if couples are fighting, but if he and his ex are working together to do what’s best for the kids, they might come to some sort of agreement. But don’t let him try to claim EIC on those kids–it will get him into trouble and you don’t want that.

  34. Can my boyfriend calim his 2 kids? but he not full of custody children, only visition every 1, 3, 5 weekends. And their mother doesn’t have job.

  36. Hey David,
    If you should be claiming your daughter on your taxes, then submit a paper filed return claiming her. If you have no right to claim your daughter, that’s tougher. If the boyfriend claimed EIC–then you can inform the IRS that he’s commiting tax fraud–but you’ll never know what happens to him, or if he gets caught or anything. Claiming the child yourself if the best way for the boyfriend to get caught.

  37. Joe,
    No, a fiance’ may not claim EIC for your child. The only way she could claim EIC is if you two were married and the child lived with you. BOTH of those conditions must be met.

  39. I am seperated and have a court order providing an alternating right to claim my child every other year. I am disabled and not working, leaving me unable to benefit from EIC. My question is: Can my live in fiancee (nearly 2 years) claim my daughter for EIC benefit while she provides more than 50% of household income?

  40. Christy,
    If you e-file your tax return and someone else has claimed your children if will be rejected pretty quickly and then you’ll know. Or, you can call your ex and ask him. Those are really your only two options.

  41. Is there anyway to find out if my ex husband claimed our children on his 2011 tax return before I file mine. I have the children full time and get to claim them I just don’t trust that he didn’t already do so.

  42. Hey Nicole,
    so many questions left unanswered. But I do thing you’re right about the paying off the ex–that’s usually going to be wrong.

  43. my brother and his wife are seperated they have one child together he files taxes every year claiming her and their son as dependants, she has no income and is threatening to get him in legal trouble because this year he only claimed their son and his two other children from another relationship.. she states that he should pay her money i ssay no its against the law.. your opinion would be nice

  44. @Curious,
    You can’t claim her as a stepchild–for that you would have to marry your girlfriend (the mother of the child.) And you’re right, she’s definitely not your niece. To be honest, she’s not related to you at all.
    The best thing is if your girlfriend has any income is for her to claim the girl. If your girlfriend has no income, then you could possibly claim the child as a qualifying relative, if:
    1. the child lived with you for the full 12 months of the year, and
    2. no one else claims her–the problem here is I’m guessing someone did claim her (like the Dad) and it came back to bite you.
    I recommend just amending your return and taking her off of your taxes.

  45. Live with girlfriend and mother to my 14 yr old son, his 7 yr old sister also lives in the household, she has a different dad and mom is not working. I claimed her as my niece erroneously. Should or could I have claimed her as my stepchild if she has a blood relation to my son? I take care of her as my own and pay the bills in the household. Her dad is ducking child support court.

  47. I am experiencing this situation right now. My ex-boyfriend claimed my kids. I did not want him too. He wanted to claim them so that we could move into a new place but I told him no it was illegal. Well I found the paper work that he got after he filled his tax’s and he did claim my twins any way. I feel like he tried to manipulate me to let him file my twins but when I told him not he took their SS numbers. What do I need to do?

  48. Hi Oscar,
    That’s a good question. Your niece may be a “qualifying child” for you. But you’ve got some more questions to ask before claiming her. First, if her mom claims her–you can’t because the priority always goes to the parent. But, if you are living with your sister, and supporting her and her child, you might qualify.
    Here is a link to the IRS website. It’s a questionaire to help you determine if you will be able to claim a child or not. It should take you about 10 minutes to answer all the questions. http://apps.irs.gov/app/eitc2010/Forward_Qualifying_Child.do;jsessionid=F9jPPR8bLhWqHdQY5JlGTdBZhlh2pCFQbqn3bhTJzwdXLVPWwGXf!396704386!724040490

  49. cand i claim a diferent child like my nice but she is 9 years old but i live with her mom and i paid the bills will i have problems….

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