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
Hi,
My husband and his ex-wife were divorced in 2006. The divorce decree does not state anything about taxes. They are listed as joint legal and joint physical custodians. Until I met him in 2009, she would claim all 3 of their children and throw him $1000 to $2000. For 2009 she let him claim 1 child and in 2010 she let him claim 2 children. He and I were married in 2011. In August of 2011 she attacked her current husband, was arrested and went to jail. At that time my husband had extended parenting time where she did not have the children overnight for 42 days. In November she went to jail for 10 days on another assualt and battery charge. For our taxes we filed married jointly and claimed his 3 children. She was not employed at all during 2011. She is now getting divorced again and her divorce decree states that this husband has to amend his taxes to include her and give her the difference. She is requesting the tax preparer to claim her 3 boys as well. The tax preparer has told her that the children were already claimed and if she files this, it may be six months before anything is done.
My husband and I had the children 198 days, were ordered to put them in our school district, and have a custody evaluation.
Is it correct that my husband is the custodial parent because he had them more, and he made more money? (as she didn’t work)
The custody agreement was negotiated to joint custody with my husband having primary residence with 220 days and her having 145. For next year should he claim all 3?
Thank you
@Kristin–Yes, you do have to sign an 8332 form for him to claim the kids–but remember you also have a court order saying that you should. Yes–the IRS won’t give him the credit without the 8332–but he can take you back to court.
Now–you have a good point–he’s paying nothing towards their care. And–since it’s after 2009-you would win with the IRS.
So- you win with the IRS. Your questions will be: Will he take you back to court? And, if he does, will he win? I can’t answer those, you’ll need to ask an attorney. Good luck.
From everything Ive read on the irs website… it says if the court order was after 2009 then he can’t submit our decree to the irs and I would have to sign a form for him to be able to claim one of the kids. Its not that Im trying to hurt him… its that he pays nothing for the kids and I pay for everything yet he still claimed one of them with the credit.
Hi Kristen,
Your agreement has you splitting the exemptions. You are the custodial parent, therefore, if you qualify, you should claim the head of household filing status and the EIC. Your ex only gets to claim the exemption and the child tax credit. It’s called splitting the exemption. Here’s some more information: http://robergtaxsolutions.com/2011/11/split-exemption-claiming-one-child-on-two-tax-returns-%e2%80%94-the-legal-way/comment-page-1/#comment-6489
Where the children live and “joint custody” are often not the same thing. The IRS goes by “where the children live” for EIC and head of household. The custody agreement usually determines who gets to claim the exemption. So, even though your ex isn’t there most of the time, he can still claim the exemption (and the child tax credit) but that’s all he gets.
I was never married to my ex but we have twins that are 4. Our custody agreement states that we are to divide the children on taxes and each year we both claim one child. However, he only gets the children every other weekend and thats if he takes them. He also hasnt been paying his child support since October of 2011. Should he be claiming either twin if they arent living with him over 50% of the time? We do have joint custody but I make all decisions and provide for them 100%.
Thank you so much for your help 🙂
Hi Cortney,
That’s the thing about these cases–everybody’s got something just a little different, and that’s what makes it so hard. But I think you might come out okay. It kind of depends on the court order, but something you said made me think you’ve got a shot.
First–your divorce was in 2002. That means, that your ex only has to send the pages of your divorce decree with his tax return to prove that he can claim the exemption. BUT—and this is where I think you may just win anyway–you said that he has to pay court ordered child support and he hasn’t. That’s a condition. According to the IRS–if he has conditions–then he can’t claim the exemption unless you sign the 8332 form to allow it.
Here’s the down side–there have been some recent court cases where folks have won with their divorce decree. Here’s the upside–your ex hasn’t paid his child support so if he were to take it to court–well he didn’t uphold his end of the bargain so I don’t see him winning that one. (OK–I’m not an attorney and I’m not allowed to give legal advice, I only give tax advice. But, from a tax standpoint, I’m thinking the IRS is not going to break with their written rules to favor a guy who is in violation of his court ordered child support payments.)
So–I’m thinking you’re on much firmer ground than you thought you were.
But there’s more–maybe. You know that he can’t claim head of household, he also cannot claim the Earned Income Tax Credit. You can. You get the head of household filing status and you get the EIC. I think you know that, but I want to make sure you do. Because if your income is in the right range, the EIC is really valuable–and you won’t lose that–no matter what your divorce decree says.
Another thing–I don’t know how the IRS will treat your certified letter–but if you’ve got the proof that he agreed to it–I’d use it. That’s the one thing that really gives you some ammunition for the exemption. Even if you lose here–and I’m not sure you will, but if you lose the case, this letter provide some reasonable evidence to show that you weren’t out of line claiming your child’s exemption. If there were to be serious penalties, that letter could help get those abated so it’s good evidence to have on your side no matter what.
So while I don’t think you’ve got a slam dunk case, I do think you have a reasonable chance. A lot of it will depend upon what the decree actually says and how the IRS interprets it. It’s probably a good idea to take a copy of the decree and go into an IRS office and have them go over it with you. I’m guessing that nobody’s arguing where your daughter sleeps at night or things like that–it sounds like it’s all about the decree. Good luck.
Hi Josie,
I’m sorry, but what you’ve got on your hands is a deadbeat. I’m sorry, I might not have spelled that correctly, I meant DEADBEAT!!!! Sorry, I can’t make the type face go any bigger here in the comment box.
But for what it’s worth–there’s no money in his tax return for you anyway. I know, that might not make you feel better, but at least you don’t have to feel like you’re missing out by him not filing those returns.
Here’s why I know he doesn’t have any money coming back–he doesn’t qualify for EIC. You have custody of those kids–so he can’t claim EIC. So there’s no money there for your kids.
If he’s got other kids from another woman that he lives with–she’s claiming the EIC, not him–so you wouldn’t get it anyway.
And let’s face it–he’s a deadbeat. He owes $65,000 in back child support. He knows that any tax refund he might possibly get would go to you–so he’s not having any withholding taken out of his wages when he does work. I’ve worked with enough deadbeats to know the game. Even when I’m trying to get them back in good graces with the IRS–it’s hard to get them to change their stripes. I absolutely guarantee that your ex is not entitled to tax refunds on any of his returns.
So, don’t waste your time or money trying to sue–it wouldn’t do you any good. There’s nothing there to sue for. If he tells you there is–he’s lying. (It kind of goes with the deadbeat personality.)
More likely, he owes the IRS, not the other way around–and he thinks he’s hiding from them. Surprise–they will catch up with him. They can be slow–but they do catch up eventually.
I wish I had a happier answer for you.
Hi Janice-
I just came across this page and tried to read as many of the answers you gave as I could. I didn’t quite see one that specifically fit my situation. So here goes…
My ex and I finalized our divorce in 2002. We both had bad lawyers, mine being the worst. He would disappear for months at a time. Our divorce took a year and a half for no reason at all other than our lawyers! Anyway, in my lawyer’s absence, my ex’s lawyer said he would help us both. I was young and didn’t want anything other than to have my ex sign the papers and me get custody of our daughter. I did not think of the issues with conflict of interest, etc. His lawyer said they would let me have head of household if I would let my ex have the dependency exemption. I agreed because I thought that was fair. It was about a year after our divorce that I found out that they were deceptive in that. He never had the option of HOH because he was not the primary caregiver/custodial parent. I did not have any money to take him back to court, so I sent him a certified letter stating that since I was the custodial parent, I would begin claiming our daughter as my dependent on the next years tax return and all future tax returns. He agreed and stopped claiming her for the last 7 years and I have been claiming her. About 2 years ago, after he remarried, his new wife told him he needed to claim her since it is in the divorce decree. He sent me an email stating that he was going to amend his last three years tax returns and claim our daughter. I met with him and offered to have him claim her for the next three years and then we could trade off every other year after that. He said no, either I paid him a certain amount of money or amend my returns. So, we have both claimed her the last two years. I received the letter from the IRS stating that she was claimed twice. He does not pay one penny over his court ordered child support. He informed me over email that his child support is more than enough to pay for all standard and extracurricular expenses for our 13 year old daughter. I understand that my certified letter is not a legal binding contract and the decree does give him the exemption. I would like to fight to get that exemption back since I am the primary caregiver (he sees her a couple times a month at best) and I pay for everything for her. My questions are: How long will this go on before the IRS addresses this? and What steps can I take to have the decree modified, if that is even possible? Thank you in advance for your help!
This is a different issue than the others – non filing parent.
I have full legal and physical custody of 4 kids for the past 8 years.
Ex has worked full time for the past 4 years and currently owes $65,000 in back child support.
Ex income has been in the range to receive the EIC.
Ex has not filed a tax return for the last 8 years.
The EIC is expiring every year without it going onto the back child support, which I would then receive it.
I do not file as I only receive the AAP (non taxable) for a disabled adopted child and live from that money only.
I believe that CA child support has a lean in on his taxes, so any refund will go straight to them, and then to me.
Is there a way to force him to file those tax returns? Can I sue to make him file, could the court do that? Is there anything the IRS could do about this?
I have tried to communicate with him but he refuses to file those forms.
Thank you for your help.
True!!! Hehe…..
Careful Denise,
Don’t be too nice or it will go to my head. But winning is nice isn’t it? And the best part is–you don’t have to tell him that your winning either!
Wow thanks Jan for an informative and fast reply! I can’t thank you enough for making me feel like I’m coming out ahead!!!!! Praise God for people like you!!!!
Hi Denise,
Thank you for your kind comments. Now about your situation. I want you to read this post: http://robergtaxsolutions.com/2011/11/split-exemption-claiming-one-child-on-two-tax-returns-%E2%80%94-the-legal-way/
It’s about how to split the exemption.
You see, your ex only gets to claim the exemption, that gives him the dependency exemption and the child tax credit. You have primary custody so you get to keep the head of household filing status and, if your income is low enough, the Earned Income Tax Credit.
If you become a high wage earner, then the Earned Income Credit won’t help you, but the head of household designation gives you a lower tax bracket for your money so that’s a good thing no matter what.
I do not recommend being sneaky and just filing your tax return before he does. For one thing, it’s a dirty trick and you’re violating your court ordered divorce decree–he’s got more money than you so he can come back at you and make you miserable. You may want to file first just to make sure you get your EIC and head of household–but be up front and honest–you’re following the law–and it’s your right to make that claim.
Now later, if your income grows out of the EIC category, then you can go back and fight for the every other year exemption–but as long as you can claim EIC–I’d take advantage of it.
In the meantime–I’d go out of my way to give my ex the 8332 form. Only sign for the tax year in question. Why? Because, when his preparer asks–do you have an 8332? And your ex says yes–then the preparer knows that your ex can’t claim head of household. 8332s aren’t given to Dads with custody.
Congratulations on finishing up with your education and good luck with the job hunt. Take the whole tax issue one year at a time. If you think about it, $300 a month is $3600 a year. About the same as the dependency exemption. If your ex is in the 25% tax braket, that exemption will save him $900, plus he’ll get the $1000 child tax credit. So you’re still coming out ahead.
Hi Jan….
Wow your blog is AMAZING!!!!! I read through at least 65 of these questions and answers and was appreciative of all!! Thank God you’re out there helping us all!!!
Ok so my situation is confusing and making me feel a bit nervous. My divorce was finalized in Feb 2010 and due to having a worse lawyer than my ex husband he somehow was given (under child support section) “respondent/husband is entitled to claim the minor child dependency exemption.” There is NO date and NO timeframe on the divorce papers. My lawyer told me “don’t worry about it now because you’re not employed and a student, take him back to court when you get a job.” This worries me because I am graduated and trying to get a job (badly) and my ex refuses to share alternating years with me once I obtain employment. He said he gives me 300 in child support and I got half his 401K in leu of the tax exemption. I told him that’s the law and taxes have nothing to do with that. Anyway, my concern is I have filed in the past as HOH and received some credits but when I do obtain employment finally…is he able to continue receiving the child dependency exemption or can I just go ahead and claim my son as long as I do it before he does? I have 55% custody and he has 45%. He will ALWAYS make more money than me!! He tries to bully me into thinking that’s HIS exemption and it was what the court ruled on! Should I just file my taxes as if we are sharing every other year? He’s got the same proof as me….a divorce paper saying the days and nights we each have our son and it shows in that I have him more but he also has that one little note saying he gets the child dependency exemption. I feel I’m getting screwed (sorry) because I was a stay home mother and student and now I can’t claim my own child that I have more than half the time??
Thanks for your help…I’m so confused and scared I will never be able to claim my son! Btw I have never signed a 8332 form giving him the right to claim our son….I let him the last few years ONLY because I was unemployed!!!!
Remember that I promised to try to do something about children’s social security numbers that are stolen year after year? Here’s a link to the White House Petition website. Please go sign it. Thank you.
https://wwws.whitehouse.gov/petitions/%21/petition/create-child-identity-theft-protection-pin-number-be-used-taxpayers-when-filing-federal-income-taxes/ypK9YDnX?utm_source=wh.gov&utm_medium=shorturl&utm_campaign=shorturl
Hey Kristi,
You kind of remind me of the old movie “With Six You Get Eggroll”. Congratulations on your blended family. So you’ve got a couple of issues going.
First, the divorce decree. It’s 10 years old so the issue would be if there are conditions–meaning does the person claiming the child have to pay child support in order to claim the exemption? The IRS doesn’t count divorce decree documents that have conditions. Now that doesn’t mean that the lawyers won’t get bent out of shape, but the IRS doesn’t care.
Second — it sounds like the ex is claiming kids she doesn’t have any right to claim. Read this post: http://robergtaxsolutions.com/2012/01/court-ordered-exemptions-and-the-irs/ That might help.
Third: even if your ex is allowed the exemption, the EIC belongs to you. (If you qualify for EIC.)
Now, this is pretty nasty, and you sound like a nice person, but sometimes you have to fight fire with fire. Here goes: if you qualify for EIC–you should amend your return and claim your husband’s three kids for EIC instead of your own, and only claim your own for the exemptions and child tax credit. Why do this? Well, you’d win that. Will it do you any good? No (because you could claim EIC with your own children already) –but it’s a tool you can use to force her to play nice. Or maybe you don’t amend like I said, but let the ex know what your options are. Talk things out and settle amicably. It’s much easier to negotiate from a position of power.
Hi Randi,
The bottom line question is do you have a right to claim your kids? I think you do. Here’s why:
First–your divorce decree was in 2008 and it has a condition that your ex pay alimony (or child support?) but the bottom line issue is conditions. Check out this post: http://robergtaxsolutions.com/2012/01/court-ordered-exemptions-and-the-irs/
I think it will help you. Basically, if you were divorced in 2008 and your decree had “conditions” for your ex to claim your son–well then it’s not really a valid reason for him to claim your child as far as the IRS is concerned.
Second–even if you were to lose that issue–and mind you, I don’t think you lose there, but even if you did, then you still get to claim your son as far as head of household, EIC, and child care credits are concerned. That might not help you, but at least you should know that. You ex has no right to claim head of household or EIC–you need to know that even if you can’t claim it–it gives you ammunition for a fight if you need it.
You don’t have to be on speaking terms with your ex to split the exemption–claiming the EIC is your right as the custodial parent. From what I’ve read in your post–you win that point.
The fact that you live in different states kind of proves you’re the custodial parent–just pull up their school records. You’re really strong here so go ahead and fight, you’re a winner.
Hi! I have read almost all your posts hoping to get an answer, but I’M coming up short. So here it goes. My husband and I have been married for 5 years. We have a blended family. I have 2 children and he has 3 from previous marriages. We have 1 together. Before 2010, everything was okay SOMEWHAT WITH TAXES. They had some sort of court documents arranging claiming kids. My husband claimed one child one year and the two the next year, and it continued as a pattern. we sometimes would have problems with a child and would have to do an amendment. In November 2010, the children came to live with us and the mother moved about an hour or so away. my question is that since having the children which was documented with child support, in order to have his check stopped for being garnished, she signed a document with child support stating the children moved in with us November of 2010. Can we claim the kids for our 2011 taxes? They lived with us all of 2011 (which they still live with us) she paid only 400 dollars in support in 2011. We pay all expenses, school fees, extra curricular, etc. When trying to speak with her, she said we could not go against the court order, which was mentioned in the begining, but the court order was when the kids were living with her and my husband was paying a lot in support. That was drawn up about 10 years ago. I’m beside myself. we raise and support the kids and in the end we keep getting messed around.. “being nice” When I filed our 2011 taxes and tried claiming the kids it kicked us out, then tried with just one, still kicked us out, we tried my husbands children individually, which she must have claimed all 3. I want to amend it but am worried in a way about her comment. I have proof but does all the other stuff from 10 years ago still affect the now? I have school documents print outs off the child support web, stating my husband as custodial and her as non- custodial. These children deserve so much more and I would love to just know if I can amend without the irs thinking I’m crazy.. Thanks so much ahead of time with whatever you can help me with!
I have a question about claiming my children on my taxes.
I got divoreced in 2008 and I have been claiming the children ever since the divorce has been final. My ex and I live in different states so we don’t follow the divorce decree about everything.We have joint custody but my ex has my kids every otherchristmas break and 1-2 months of summer depending on the year.
This year my ex claimed my oldest because it says in the decree that he get to claim him (which was just a stipulation because he was suppose to pay alimony and never did SHOCKER). Now my return has been rejected and he wants to claim our oldest from now on.
Here’s my issue with it: Yes, the decree says he does claim the oldest but he doesn’t see him every weekend llike it says I have BOTH of my kids 10-11 months out of the year, I pay for their clothes, braces, fieldtrips, DR. Appts and any toher thing they do or need. He does pay child support but that doesn’t even cover half of what I spend out!
Do I have any grounds to claim my child or do I have to give the credit up to my ex. And there is no grounds for understanding he is I get it all or I get nothing. I will fight if I have a fighting chance but I don’t want to fight if I am going to lose in the end. If I can fight what exactly do I need to prove my case!
Your advice will be greatly appreciated!
Thanks bunches 🙂
@ Anyone who has to call the IRS:
If you’re calling the IRS to follow up on the status of your return, here’s my tips fr calling the IRS: http://robergtaxsolutions.com/2011/09/how-to-call-the-irs/
The main phone number to reach them is: (800) 829-1040
Try to call on a Wednesday or Thursday–those seem to be better days. Avoid Monday’s if possible. Good luck.
Hi Donna,
I’m getting a lot of “How long do I have to wait” comments. Not only here but on the injured spouse site as well. It seems that lots of people have crossed the 8 week mark. I’m guessing that things will be closer to 12 to 16 weeks. It’s looking that the IRS has hit a back log. You can try calling the (800) 829-1040 number. You will be on hold for a long time. Call on a Wednesday or Thursday–that’s usually better. Have some M&M’s (makes the IRS easier to deal with) and a speaker phone is really handy. The hold music is awful. But my best guess is that you’re just going to have to wait awhile.
Hi Stephen,
Your 45 days have come and gone and still no answer. I’m sorry. To be honest, the IRS is understaffed and sometimes things take longer than expected.
That said–you were given a timeline of 45 days and nothing has happened. You may have a case for the taxpayer advocate–their job is to help taxpayers with procedural issues–like you were told 45 days.
My first call would be back to the office you were speaking with before–what’s happening? What’s the timeframe? Etc. If they can’t (or won’t) give you an answer–then I’d go to the taxpayer advocate for help. Different local areas have different phone numbers for the local advocate, but if you call the IRS main number (800) 829-1040 they can give you the phone number for your taxpayer advocate.
Fair warning–the taxpayer advocate’s office is also overworked and understaffed, so if the office issuing the CP75 gives you a reasonably answer–please don’t call the advocate. Only call the advocate if you don’t get anywhere with the other folks. Good luck.
It has been 8 wks since we mailed the paper return with all the necessary documents and the one for fraud by the mother as well, and we still haven’t heard anything. No calls, no letters, no forms, no response online or by phone.
Exactly how long should we wait to have some sort of response ? Do you know a number where we can reach an actual human?
I received a CP75 letter in February. I have submitted the required documents. The IRS acknowledged receipt of the documents. The IRS said it could take upto 45 days to review the papers. The 45 days ended today, and this is the 45th day after the IRS has acknowledged receipt of the papers. I have not yet heard anything from the IRS yet. I call them periodically to check on the status of the return and the response is that it is being reviewed. I thought the IRS had 45 days after acknowledgment of receipt of the papers requested per the CP75 letter to give me a response. The IRS website still reads the same thing, which is that the return is being reviewed. Now what? What is their timeline and what is their deadline to complete the review from the CP75 letter information?
Hi Beth,
sorry about your uncomfortable situation. Exes and kids always seem to be a problem. For the most part–I’m going to tell you to talk to an attorney–you’ve got some legal issues there and it’s against the law for me to give legal advice.
Now on the tax issue– (they let me talk about that) since you amended by April 17th (smart move by the way) that makes you “incorrect” return void and your amended return becomes the official IRS document.
So it all comes back to the divorce decree–once again–lawyer up–but what does the divorce decree say about claiming the children? You can’t claim them for EIC –but what about the exemption? I’m attaching a link to information about how the IRS treats divorce decrees–maybe there’s something in there to help you. http://robergtaxsolutions.com/2012/01/court-ordered-exemptions-and-the-irs/
I’m guessing that you’re fully aware of what you can and cannot get away with because you mention getting her to sign the 8332 form to release the exemption–that tells me the divorce was in 2009 or later. But in case I’m wrong I just want to make sure you have all the ammunition you can get.
You’ve filed your amended return and you’ve offered to pay any extra costs she incurs on her taxes for filing an extension. (For what it’s worth, I wouldn’t have charged any of my clients extra for that–just sayin’–not sure there’s extra expense there.) So if she tries to take you to court–what will she sue for? You’ve done what she’s asked–once again, I’m not a lawyer so you should talk to one of them. But taxwise, you’ve righted any wrong that you caused. Good luck.
I really screwed up on something, but I want to know if the steps I took to remedy the situation are adequate.
My husband has a difficult relationship with his ex. She has sole physical custody and they have joint legal custody of their kids. She basically manipulated him into not going to court to stop her moving over 1000 miles away with her new boyfriend and the kids, even though the court decree said there really needs to be an agreement. She suggested one year he claim one of the kids on the taxes, but at the last minute called and said they really needed the money, so he didn’t. The second year, he sent her the form, and she said that her now-husband was going to claim them. This year we asked and asked for the form, and got no response. It was a really bad year for us and we had withheld too much. In a very bad decision, we claimed one of the kids. She was furious, and I quickly amended the return to remove the child. We filed the amended return on 4/17. I have also offered to pay for any extra tax costs that come from her having to prepare an extended return as well.
Can she still bring any kind of charges against us?
We have taken all kinds of abuse of the court decree from her, up to and including her using funds for daycare to move them out of state and her cutting short visitation time, her ignoring the health insurance that we’re required to carry on the kids, and no help at all in sharing the cost of childcare when we do have them (we’re supposed to pay half). We pay child support every month in addition to half of their school expenses. If she does bring us to court, is this something we can use to counter her claim?
Thank you for any advice,
Beth
Hi Graice,
Your cousin has a couple of issues that are probably out of my league. Issue one is that she’s undocumented. She may file a tax return to pay income tax on the money she earns (using an ITIN number) but she will not be able to claim EIC.
I’m guessing that the children have social security numbers and that makes them a valuable “tool” to the ex.
So what can your cousin do? The ex is illegally claiming her kids–that’s for certain, but what happens if she turns him in? He could turn her in for being undocumented and that could be far worse than what she’s dealing with now.
I think she needs to talk with an immigration attorney to know what her options truly are. I wouldn’t want to make any recommendation that would make your cousin’s situation worse than what it already is. Sorry I’m not much help here.
Hey Cherina,
(Okay, I think that’s such a pretty name, just had to comment about that)–Anyway, your major problem is proving you had your daughter most of the time. You’ve got her on your lease–that’s a good piece of documentation. Also, you mentioned day care–you’re the parent that registered her for day care so you’ve also got that. Those sound like your two major pieces of proof right there.
I suspect that this might be a problem for you in the future too, so I’d start right now maintaining a calendar of every day your daughter sleeps in your house. A calendar is a very powerful tool. Sounds corny but it works with the IRS.
Other than the lease and the daycare, any receipts for medical expenses, dental care, anything like that. If you are a church goer–then Sunday school registration or even a letter from your minister might help.
I suspect that you’ve got enough documentation to win your case, but if you still need more proof, a letter from your landlord that not only is your child on your lease, but that he’s seen her at your home on a regular basis might help. Good luck.
Hi Cassandra–
You want me to explain “why” your ex-husband gets away with it. I don’t have a good answer for you. The answer the IRS gave me is that because custody issues can change, they have to allow for the possibility that the ex really has become the custodial parent. Personally, I think that’s a pretty lame answer.
You seem to be another victim of the wrong parent claiming the child multiple times. I’m adding you to my list to sign the petition to get this changed.
I will definitely sign. This is ridiculous and furthermore it consumes the time of our IRS resources to chase after stuff that folks know is plain ole’ fraud when they signed the tax form. I hope something can be done!!!!!
I have a question, my cousin is an undocumented person and her ex-boyfriend wtich is her 2 daughters father has done his income tax return and claimed his two daughters and my cousin for the past 2 years. The thing is that hey have been separated for 2 years already and he is still claiming them and the kids live with her and he barely started seeing the kids about 3 months ago.Plus he does not pay child support and wont give her money. Plus also he has not giving her any of the income tax money he has gotten from them. Is there any advice you can give us and do you think she has a wining chance.
My daughters father and I split up 2 years ago when she was just 6 months old. He went behind my back and claimed her on his taxes this year. We never had any court documents inplace until this year. we had a verbal agreement of 50/50 time. However I did have her way more than he did last year. He worked until 10pm most days. He refused to help me with putting her in daycare and we had family members watch her until he became unemployed in septemer 2012. My question is what documentation would I need to prove that my home was the primary residence. Her medicaid ran out early to mid of last year, she was on my insurance though. She is now on my insurance with my current employer but that dosent help me for last year. She was not in any school or daycare. So I cant prove that. She was on my lease agreement and I do have all my receipts and things. My income was nearly double his last year so I payed for most things for her.
Hello,
I have a question. I live in upstate ny. I been wondering about this.My ex husband has no rights to claim my two children that we have in common. He does not qualify for earned income credit for either one of them. They live with me all year around and my hubsand and I support them full time. The kids biological father claimed the kids one year on his state taxes and had to pay money back to irs. The following year did it again on his federal taxes. then turned around and claimed one child on his taxes. Now, i called the irs and went through all the dependant questions. even the irs dept. said he can’t claim them at all. I am wondering why is he still claiming them then if he should be blocked from doing so, and don’t people who keep doing this usually go to jail for this. He keeps getting away with it. Can you explain why?
Thanks
@LeeAnn,
Yes–you’re good to go! Glad you’re filing as married, that gives you a win/win/win situation.
I was worried when you said it was fraud to claim head of household on my taxes. So I went back and checked my taxes form previous years and we did claim married. I just always thought when I did the taxes that it was head of household. Then I can go ahead and claim all three of my children to get the child tax credit and my ex can claim head of household plus the EIC?
Hi Alex,
You are the custodial parent and you have the superior claim. End of story. (I’m probably too late for your appointment but still, you do have the superior claim.)
Now, you may wish to give her the exemption and child tax credit–but none of the other stuff counts because you are the custodial parent. Now that might not do you any good–but knowing you’re right — well that’s something.
By the way–if you’ve got custody and you’re paying child support and she makes more money? You need a better lawyer. Sorry, but you do.
Hi Brian,
You should be allowed to claim the exemption and the child tax credit. You might be able to use your divorce decree papers instead of a form 8332–it depends upon your divorce decree. See this post: http://robergtaxsolutions.com/2012/01/court-ordered-exemptions-and-the-irs/
Good luck.
Hey SugarMags–Thanks! You’re on the list!
@LeeAnn–
your husband can’t claim head of household–you’re married. It’s considered tax fraud. You don’t want to do that. You want to file a married. The married deduction is higher than head of household.
@Lisa,
If you’re filing legitimate business returns, then don’t worry about a thing. But make 100% sure you’re correct about claiming a child before you do.
Remember, the IRS rules about substantiating business income for EIC have become really strict so make sure you’ve got 1099s, receipts, checking accounts, and bank records.
Hey Heather,
My recommendation is for you and your ex to find an enrolled agent and go together to that office–or the IRS directly for that matter, and together show that you are united on this thing. My guess–forgive my cynical reaction but I’m getting old and cranky, is that your ex hasn’t been 100% honest with you. But if she has, then she’ll gladly go with you to your nearest IRS office and straighten the whole thing out. Even on my worst cases, an amendment does not take a whole year.
My ex and I have been separated for about 3 1/2 years we have a 4 year old boy together. I have been unemployed receiving unemploymeny and paying child support all of 2011.my son is living with me Monday- Friday night he stays with his mother Friday overnight Saturday overnight and I pick him up Sunday evening. My son is enrolled in school in my county for his mother lives in a different county nut yet she claimed my son as a dependent and head of household as well. She said because she made more money than i did that the IRS would side with her and let her keep the credit. My tax appointment is later this evening just do not know which route I should take like i said I’ve had my son 5 nights out of the week for the past 3 years almost. I’ve been supporting him double the amount for they garnished my unemployment and plus paying for everything he needs in my household. Do i have the right and grounds to claim my son this is twice she does this to me 2010 and now 2011 knowing perfectly well I have our son the majority of the time please if you can help me with any information I would greatly appreciate it thank you very much.
Hi i ran into a problem this year claiming my son on my taxes this year. It seems the mother claimed him already. I only have him 35% of the time, however, we do have court ordered papers saying i do get to claim him on odd years. I know you are suppose to have at least 50% custody but if you have court ordered papers, wouldnt that give me the right to do so? I claimed him 2 years ago just fine, but i think she saw she could claim him every year if she had him more than 50% of the time. I know there is a form from thr IRS that should be signed but im sure she wont sign it. Any suggestions on what i should do?
Thank you SO MUCH for all this info. It has helped tremendously. I just read that:
“…after tax season is over, we’re launching a campaign to the white house for the IRS to start a child identity theft PIN protection number – similar to the one they have for adult identity theft victims.”
Please add me to the list! I definitely think this should be done.
I agree with Judit who said these people who claim a child when they shouldn’t are thieves and should be dealt with as such. Potential victims of thieves — and their parents — should have a way to protect themselves. No different than putting a deadbolt on your front door.
My ex told me about what you had mentioned earlier, where one parent could claim EIC and the other could claim the child tax credit. You had mentioned something about head of household. My husband claims head of household every year on our joint return. If my ex files head of household to get the EIC then won’t that disqualify my husband from claiming head of household then we wouldn’t get the standard deduction because of that.
Hi there. My husband and his ex split custody 50/50. Up until 2 years ago he was paying child support but as the 3rd of 4 children turned 19 and the ex wife has been doing well with her limo business. They agreed to stop child support and split expenses 50/50. The divorce decree (before 2008) stated that because he was paying 80% plus medical was entitled to the tax benefits 3 out of every 4 years. Last year she got to use the remaining child. This year she claimed her again. Now it sounds like the divorce decree and the fact that she lives with us every other week would put us being able to take her this year on our side. What I am concerned with is that both his ex, and myself also run small businesses. When we both (his ex and us) get audited for double filing a dependent will they be looking at our businesses as well? I don’t know if this is something you can help with or not but thought I would at least ask. Thanks!
My husband and his ex have been divorced since 2008. The decree says that he claims the oldest, she claims the middle and they alternate the youngest (no stipulations). Our 2010 taxes were rejected because the oldest was already claimed. I called the ex and asked and she said that it was pure accident, she claims them for EIC and HOH and that she would amend her taxes. March 2011, she informed me that she amended her taxes. I paper mailed our taxes with a letter attached with the divorce decree. I also wrote in my letter that I asked her to sign 8332 just in case this should happen again that we wouldn’t have to mail in the decree again, etc. I know we don’t need it, but we all thought it would be easiest. We started receiving letters from the IRS in October just saying that the child was claimed twice. I talked to the ex again and she said that she still didn’t hear anything from IRS about her amendment and that she hasn’t been receiving any of the letters from the IRS. I went to my local office and they told me that if the amendment is there, not to worry too much. I called the IRS and was told the same thing. I then received a letter saying to prove she’s our dependent. I called the ex again. She said that she still hasn’t heard anything from the IRS about the amendment and hasn’t received anything from them even questioning her. I called the IRS and they told me what to send in but wanted me to send in information on my son (he is my son with my husband) just because when they look at one misclaimed, they want to make sure that all the claims can be done. So I sent in the entire decree again, my son’s birth certificate, our marriage license (they said I should send that, too), medical insurance claims on both my son and the oldest, my 2010 taxes with a copy of the letter that was originally sent and the 8332 form. The IRS told me that it never takes a year for an amendment. I called the ex again and asked about it. She still says that she hasn’t received anything from the IRS. She said that she was going to amend her taxes (again). I am convinced that was accidental, although people are telling me that I’m foolish to do so, and it’s something that has didn’t happen with our 2008, 2009 or 2011 taxes. I just want to know what the process is from here. I know that we will receive something in the mail saying that we’re cleared or not. Should she have been receiving the same information? My concern is that she is taking this so lightly and I’m not one who wants the IRS sending me letters questioning my taxes.
@Ginger,
I’ve seen a lot of divorce decrees and worked with a lot of couples. (Or ex couples I should say.) Sometimes the decrees outlines seem to be totally ignored. But lots of times I see them going to court for enforcement. I honestly don’t know what to think.
Hi Ann,
It’s all about the actual physical custody. Who is really taking care of the children and providing for their daily needs. The courts can award exemptions–but head of household and EIC are all about who is really taking care of the children.