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.
_______________________________________________________________________
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
I have a question for a friend. She was divorced in 2010. They have joint custody but the decree states she claims both children every year. Last year she did but this year her ex is saying he is already filing and he is claiming one of the children. I was trying to help her with the little bit I know but I wanted an expert to be sure. If she claims both now, what will happen it it does go through? What is the verdict if it doesn’t go through? I told her I thought she has the right because of the papers and that he would have had to file a Form 8332. Can you help? Thanks so much!!
Hi Luke,
You’ve got a good question but I don’t have a good answer. It’s wrong for a person to claim a child that doesn’t live with them on their tax return. You don’t want anyone illegally claiming your sister, but it’s looking like you might not have a way to fight back. I’m guessing that your mom and your aunt are not on speaking terms, otherwise they’d just talk it over.
The easy answer, having your mom file a tax return and claiming your sister won’t get you any money but it still might be the best way to go. She could file a zero balance return–I actually recommend that for people who are concerned with identity theft (which is really what your aunt is doing). It won’t do your mom any good, but it will identify to the IRS that someone is claiming her child illegally.
If she doesn’t want to do that, if your sister’s father is anywhere in the picture, your mom could sign a form 8332 and release your sister’s exemption to him. Probably not a great solution, but it’s an alternative.
Another possibility may be–since I’m guessing that you’re the older brother, if you live with your sister and your mom, and if you have income, you may be able to claim her.–This isn’t as easy as it sounds. You’ll have to meet all of the other requirements. For one thing, nobody can be able to claim you as a dependent on a tax return. You really do have to live with your mom and sister, etc.
If you think that you might be able to claim your sister, I’d go to a professional and have your return prepared. Realize that you’re setting yourself up for an IRS battle so if you’re going to do this you’ll want to make absolutely sure that you will qualify. That’s why I’d go to a professional–you’ll have several pages of questions you need to answer and forms to sign (the rules are tougher this year.) Good luck.
My mother strongly feels that my aunt has claimed my sister with their w-2s however she doesn’t file taxes bc she isnt workig and is on social secuirty and receives a check for my sister. The tax office told her to file taxes and if she was denied shed know if somebody had but how can she file without working? Is there any other way to get to the bottom of this?
Hi Ginger,
Custody battles are no fun. Good luck.
Your last question is the most important so I’m answering that one first, you said, How can I stop him from claiming my children again? You’re going to hate this answer—You can’t. You can fight it, you can go after him all you want and you’ll probably win—but there’s nothing to stop him from trying again. If you scroll up and read Chris’s letter, you’ll see how he’s had to battle his wife’s ex for 5 years—sadly that’s true. He’s not alone.
But that doesn’t mean you’ve lost! It just means it will be a pain in the behind. So, for 2011 you had custody for more than half the year so technically you have the right to claim the kids. Also, since you had full custody in 2010 then you may go back and file for 2010—don’t do it unless you feel confident you are in the right. Did the children live with you? Did you support them? Did they go to school in the neighborhood where you live? You’re going to have to answer all these questions if you file a paper return making the claim and it’s a bear so DON’T DO IT UNLESS YOU’RE IN THE RIGHT!
Seriously. I’m assuming that you are in the right but you’ve got a red flag waving—you had a judge award custody of your children to someone else. You need the think long and hard about why a judge would do that and was it for reasons that the IRS would have a problem with—for example a court record saying that the kids weren’t with you, you dumped them at a neighbor’s or something. If there’s anything like that in the court record, that’s what your ex will be producing to show the IRS that you are not the custodial parent and not deserving of the exemption, EIC, child tax credit, etc. Your issue is not just what case can you build to prove to the IRS that you really were the custodial parent, but also what case your ex will be able to prove.
It’s not going to be easy, and it’s going to take a long time, like 4 months before you ever see any money—and that’s if you win. But if your children lived with you and you provided their home then it’s your right to claim them.
I am in the middle of custody battle with my ex. We split up in october 2009. We have2 kids together. On october 13 2011 the judge signed him temporary custody which we go back to court the 12th of jabuary but anyways we had an agreement to switch on and off each year to claim the kids but last year was supposed tp be the year i claimed and he claimed behind my back. Even know right now he has tempory custoday and they lived with me from january to october 2011. They just established paternity he is not on the birth certificates. Chow can i stop him from claiming them again?
Hi Tzietzel,
It’s important that your divorce decree has not conditions—because that means you can use the divorce decree as proof that you may claim the exemption and will not need a form 8332 from the mom. As to alternating the “minor” children. I would check with an attorney on that issue because although the college age child is over 18—he is still an exemption as far as the IRS is concerned.
If you had custody for 5 months—that doesn’t qualify as over half the year. But—you also had the children every Wednesday and every other weekend. It’s probably worth your while to sit down with a calendar and “count days” because you may just have the “over half the year” requirement. But—even if you do—how much good does it do you?
You really need to look at the battle—what do you gain? What do you lose? What will be the best for the children? Think about the long term and the short term consequences. Here’s two really hard questions you need to ask yourself:
1. Will the kids be better off if I stand my ground an not let the mom claim them on her tax return? If yes, how will those kids be better off?
2. Am I just trying to punish my husband’s ex-wife because I don’t think she’s been the most responsible person?
Only you can answer those questions. If the answer to number one is yes, then you should be able to answer how. If the answer to number 1 is no, then why are you fighting? I’ll let you decide about question number 2.
Hi Jan,
The divorce papers are from 2000 but there are no conditions. The papers only address minor children and not those that are of age. The papers state that the parents are to alternate minor children. This will make the second year that we have claimed the college age child (so he could receive the tuition remission). She has managed to only work the bare minimum each year to receive the EIC and then quits but because we itemize our deductions and she has nothing that would qualify for itemization, she has filed first and we have not been able to claim the 15 year old. Really we are just completely frustrated with her not following the decree, which we have been trying to do. As far as where the child lives, last year the mother was evicted and we took in all the children for about 5 months, not to mention the visitation, which is yes Wednesday and every other weekend.
Thanks for your help!
@Denisse,
And you’ve made this whole blog thing worthwhile for me! And especially for you, this is from an old college roommate’s mom, don’t ever forget these words:
“You’re bright, you’re beautiful, and you’re talented and you deserve better!”
Good luck and don’t let the bullies get you down!
@Tzietzel–I meant WHO is the custodial parent? I wasn’t asking about her health. Sorry.
Hi Tzeitel,
First, I have a question for you. How is the custodial parent? Although the agreement is shared parenting—when the kids go to sleep at night, where do they spend the most nights? I’m assuming the college student sleeps in the dorm but spends more nights with the mom than you and your husband. I’m guessing the 15 year old lives with the mom also. If that’s not the case—then reverse my answer, but I’m pretty sure they live with her.
So, you have a divorce decree that lets you claim both children every other year. (a pre-2009 divorce decree with conditions of child support so that’s technically worthless, but up until now you’ve been following the decree.
Here’s my question: what happened last year? The college aged child can still be claimed. You claimed him last year. Did you also claim the 15 year old? That would have you claiming 2 and her claiming 0. Or, last year, was it her turn to claim two but you claimed one? So now she’s balancing it out claiming one again? So it sounds like it’s just being fair.
From where I’m sitting—it looks to me like a fair solution would be for you and your husband to claim the college student until graduation and the ex-wife to claim the younger one. Then, when the younger one goes to college—if free tuition is still an option, then you should claim the younger. Now technically, you should alternate the younger one every year, but if the trade off is free tuition, than any right minded individual would release the exemption for that. My daughter’s a college sophomore and I will gladly let you claim her for an exemption exchange for free tuition. (Oops, that’s illegal, sorry, I run a clean website.)
Okay, but here’s something else to consider—once again, claiming an exemption is not the same as claiming head of household or EIC. You and your husband qualify for the married filing jointly tax status (that’s good for you.) You probably do not qualify for an Earned Income Credit. The ex-wife, who probably will qualify for EIC because she’s now working and might benefit from the head of household filing status could let you claim both exemptions and she could take the head of household filing status and the Earned Income Credit. This would pretty much be a win/win for both of you. The only “controversy” I can see (of course I don’t see your whole picture so there may be more issues that I don’t know about) but the controversy I see is the child tax credit you’d get on the 15 year old—that’s $1000. There’s no child tax credit on the college student.
Anyway, that’s a compromise that might work for both of you. It’s at least worth checking out.
Hi Em,
If you scroll up and read Wendy’s post it’s almost the exact same answer. (You’ve got a son, she’s got a daughter, but pretty much the rest is the same. Your son’s father may only claim the EXEMPTION with that court order. With the exemption goes the CHILD TAX CREDIT. But you are the custodial parent—you are entitled to HEAD OF HOUSEHOLD TAX STATUS and the EARNED INCOME CREDIT.
I’m not putting that in caps to scream at you but just to make a point. If your ex is just doing this because he wants to make your struggle harder. I will be happy to scream at him: HEY DIRTBAG, LEAVE EM ALONE! That probably didn’t help you much but it did make me feel better. And I’m sorry for calling your ex a dirtbag, your son is probably adorable so the guy did something right. (I’m not allowed to give legal advice but there’s no law against my calling people names.)
Bottom line, even with a court order, he can’t take everything away from you.
One more thing for Wendy,
Sorry, forgot to add this part–How can you tell if he claimed EIC or not? You can’t. He can tell you, but about the only way you’ll know otherwise is if you try to claim it and your return gets rejected when you e-file. If this happens, then you paper file like I wrote about in the main post.
It’s a pain in the butt but you’ll win in the end. (Okay, it’s late, the pun was not intended.) Sorry.
Hi Wendy,
First, let me say that I’m not a lawyer and it’s against the law for me to give legal advice, I’m an enrolled agent and I’m only allowed to give tax advice. So—even though the IRS might not care about your court order, the judge in your state probably does. If I can find an attorney to make a post here I will, because a lot of people have “court order” questions. But I’m not allowed to say anything about that.
But, I can talk a whole lot about IRS stuff. And here I go…
Okay—you weren’t even married so as far as the IRS is concerned, your court order—which even if you were married is a condition—does not count in IRS eyes. But—I don’t want to have to come visit you in jail for defying a court order. (I’m sure you’ve be great to meet for coffee or something, but you’d be pretty ticked at me if you were in prison so let’s not go there.)
What you can do—and this would be obeying the court order and helping yourself—that’s the bit about splitting the exemption. Here’s my post on that: http://robergtaxsolutions.com/?s=splitting+an+exemption
Bottom line—you sign a form called an 8332, here’s a link for that: http://www.irs.gov/pub/irs-pdf/f8332.pdf Only sign for one year, never sign the forever part.
When you sign that form, it allows the dad to claim your child in his tax return for the exemption and for the child tax credit. You, the custodial parent, keep the child for purposes of claiming the head of household filing status and the Earned Income Credit. Since you only have to sign over the exemption if you make less than $20,000—you’ll qualify for the earned income credit. If your daughter were still in daycare, you’ll also get to keep the child care credit too.
Your ex may not claim EIC because he is not the custodial parent. Your court order to give him the exemption ONLY GIVES HIM THE EXEMPTION, your court order cannot give your ex the Earned Income Credit—that’s not legal advice, that’s straight tax regulation.
There are income limits to EIC. I just posted this year’s limits in another blog post. Here’s a link to that: http://robergtaxsolutions.com/2011/12/eight-basic-rules-to-qualify-for-the-earned-income-tax-credit/ The income figures are down near the bottom.
Thanks for coming back.
Hi Jan,
Yes my daughter lives with me and I provide mostly everything for her. I have never been married to him. There was a time (year of 2010) I lived with him and his parents for about 4 months, that’s it though.. I am so much relieved that I found your site and feel so much better. I actually currently work at a CPA firm and have already requested my boss to give me those papers where I can make my daughter only dependent on me. I thank you so much! Yesterday he was threatening me with so much I felt horrible… but reading all of these comments has really boosted my confidence and never again will I be intimidated by him. I guess I was worried because he just recently graduated from the police academy… so I felt he might have more knowledge…
Again Jan thank you so much for your advice!!!! You’ve really made my day 🙂
My husband & his ex-wife have a divorce decree that was issued in 2000, at the time they had 3 minor children. The papers state that in 2000 & 2001 my husband was to claim two of the three children and then in 2002 his ex would claim two and they are to alternate there after. Two of the three children are now no longer children (one is completely on his own, the other is 20 and in college and we claim him in order for him to receive tuition remission), the third child is 15 and it is our year to claim her. The ex has now told my husband that she is going to claim her as we are claiming the 20 year old (so he can go to college for free). They have a shared parenting agreement and he pays over $1000 per month in child support (the ex just started working in November). What can we do? Any advice?
If I have a court order with my sons father that he will be claiming our son on taxes, we are not married nor live together, but I am the prmary guardian and our son lives with me more than half the year. Does he still get to claim him? How Would I go about this. I get child support but it does not cover half the cost of taking care of our son, for instance daycare, now thats more then my rent is a month. With my taxes I get back frrom claiming my son I usually save that money and use it for school. But now that I dont get to claim my son its going to be a harder struggle. Sometimes I feel like my sons father is wanting that. Anyone have any advice for me.
Hi again Jan!
Just wanted to say that your advice to me was so very helpful. I’m so glad I found this site. I’ve been trying to get info on my particular situation for so long now but it’s hard on a budget to get an accountant or tax attorney to meet with you without a down payment on a meeting.
I also have two more questions for you. The first is that I was reading another answer you gave to someone else about conditions in a divorce decree. I don’t have a divorce decree as my daughters father & I were never married but in our court document there is a condition that states that I can only claim my child if I’ve made at least $20k for that particular year. Is this acceptable? Can I use this as a backup standing if we go back to court and the court says that I have to let him claim my daughter? Is this a substantial reason that I can use in my favor because there should be no conditions listed?
Secondly, even though you have stated that I have every right to claim my daughter b/c I never signed an 8332 form, can you explain to me how both he & I can still claim her by splitting the exemption, EIC and child care credit (which I don’t think I am eligible for anymore anyway since my daughter is no longer in daycare – she’s 10 – but I used to claim that while I was employed full time and she was in daycare). I’m just trying to go with the less troublesome route. How do I even know if he claimed EIC or if he can? Is there an income limit on that?
Thanks again for all your great advice & help!!!! It is SO appreciated more than you know!!!!
Hi Denisse,
I hear you. Let me make sure that I understand everything so that I get it right, okay? Your daughter lives with you and you provide most of her support, (except for some diapers, milk, and wipes–which the IRS doesn’t even count anyway.) But bottom line–she lives with you and you are the custodial parent. Yes or no?
Your baby’s daddy is not now and never was married to you? Yes or no?
Your baby’s daddy does not live with you now and hasn’t lived with you for over half of 2011? Yes or no?
I’m guessing that you’re saying “yes” to all my questions. If so, then you do not owe the baby’s father anything. End of story.
But I can hear him now, “But I paid for the milk and the diapers and wipes, I should get something.” Sorry, no. He’s doing his duty towards his child–and minimum duty at that. I once had a guy try to claim EIC on different kids with different moms on the grounds that he “bought each of the kids a birthday present every year.” No dice.
EIC is only for the custodial parent. You may chose to release the exemption and the child tax credit (they go together) but you can never release the EIC to someone who does not have custody of the child. Period, end of story.
Diapers and wipes do not make for an EIC claim. (Sorry, I’m on my soapbox. I’ll calm down.)
Seriously, you do what’s right by the law and right by your child. I don’t see anything in the tax code that says you need to hand over your refund. If I’ve got my facts about your case wrong, let me know and I’ll make adjustments, but I’m thinking you’re okay.
I’ve read a lot of these comments and it’s all been very helpful… What I would like to know though if someone could please help me. I’m a 22 year old mother of a 2 year old baby girl. My baby’s father has been very miserable in helping out.. the only things he’s helped out has been diapers, wipes, milk… he’s only bought her clothes twice her whole life. Everything else has been on me. It’s been a tough road for me, my baby’s father last year asked for money from income but I didn’t give him any. This year he is asking for half… but why should I when he hasn’t helped me the way he should. My question is… Do I really need to give him something if there’s really no proof he’s supported me the way he should? I mean diapers wipes and milk is only like what “100” a month.. maybe not even that much cause he only buys that stuff once a week…. and my daughter is always with me… she’s recently started staying more often about a month ago… maybe once a or twice a week… that is it though… but just becuase of that I don’t think it gives him the right to try to take money away when I’m in need of it most. Please help someone… I’ve been stressing over that and other financial problems. Please…..
Hi Sandi,
I don’t have all the information I need but maybe this will help you.
1. Since you have custody, you are entitled to claim head of household and the Earned income credit if you qualify for that.
2. If your divorce was in 2009 or later, your ex cannot claim your children unless you sign a form 8332 allowing him to do it.
3. If you divorce was in 2008 or before, AND if you divorce decree says that he can claim you children, AND there are no conditions to it–like having to pay child support, then your ex may claim the children for the child tax credit and for the exemption but not for head of household or EIC.
You might want to check out my post on splitting an exemption: http://robergtaxsolutions.com/?s=splitting+an+exemption
You asked a good question–if he claims the children, isn’t he supposed to give me what he gets for them? I get asked that question a lot. The short answer: No. If you’re divorced and you’ve got a decree and he’s been given that right by the court–no, you don’t get anything.
Now–I often suggest that couples who can work together for the “good of the child” and figure out what’s best–and obeying all the IRS rules–because really that’s important (I’m serious, not just lip service) but some couples can work together and split the refund. Those couples are rare.
But, if he can legally claim your children, then he has no obligation to give you the money. The key word here is “legally”. If he can’t legally claim them–fight back and file the childrens exemptions for yourself.
I need to know, if it’s alright for my ex-Husband to claim our children on his tax return when they aren’t living with him! They are living with me & they have been, since we got divorce! I have full custody… Is this right? because “I” don’t think it’s right! Please tell me if it’s wrong for him to claim them! also, I don’t work right now & I never gave him permission to claim them! Is THIS what he’s doing right? If he’s claiming the children, isn’t he suppose to give me what he’s getting from them? Also, my 2 children are 9 (my son) & 18 (my daughter) Thank You.
Hi Cierra,
It sounds like you have custody and you should claim your child. I wish there was a way to put a lock on a social security number but unfortunately, there isn’t. Sometimes, if someone has fraudulently claimed EIC, the IRS will make it so that they can’t do it again, but it seems like it’s rare.
If your son’s father claims him again, you’ll have to go through the process described above. It’s long and slow, but you’re the custodial parent so eventually you’ll win. Good luck.
First off, Im only 17 and I need some advice. Dec.4, 2010 I had my son and we stay with my mom. Last year, As soon as tax time comes around his dad wanted to use his ss card but I didnt let him. So he went down to the SS building and got his card and Later I found out that he let his mom file my son without my permisson and me or my mom didnt get anything ! What should I do? This year On the 12th Ill be 18 and Im filing my own son but i dont to have to rush and fight just to beat him to it. My child lives with me, he go with his dad from time to time but this is where he stay. His dad dont understand that, he thinks just because thats his son, he suppose to file him and get everything. Is there some type of way I can put a lock on his ss Number because I dont want no one else filing him but me!
This is for Kendra,
I deleted your question because it had your last name on it and I thought it best that we not post that.
Here’s your question: I was wondering what I should do when I let one of my family members claim my child last year and she didn’t pay me my money for that child. And what can I do to prevent her from trying to claim him this year without my permission please help me.
I’m making the assumption that the family member that you allowed to claim your child was legally entitled to do so. Your child lived with that person for more than half the year, and that person provided support and all the other requirements that would allow that person to claim your child on a tax return. Right? So if that person legally claimed your child—then what do you mean by “she didn’t pay me my money for that child?” If your family member truly was the custodian, and support giver well then you have no right to the money. She was claiming your child because she was the main support.
Let’s look at the other side—what if that wasn’t the case and your relative really didn’t have a legal right to claim your child, but the two of you “conspired to defraud the United States government” to claim EIC and then your co-conspirator stiffed you. That sounds really ugly doesn’t it? I’m sure that’s not how you meant it, but it’s really important to see how things look to the IRS. I cannot stress that enough. The IRS estimates that 25% of all EIC claims are fraud, and if they think you committed fraud, they will not be nice about it. (To put it mildly.) But this is why I decided to delete your name. I’m pretty sure that you didn’t mean it the way it sounded, but if the IRS were looking for someone to investigate well here’s Kendra and she just confessed on the internet!
I figure you came to my website for help, not to get into trouble with the IRS. And if you were really trying to do wrong, you wouldn’t be posting it on the internet.
But here’s what I’m guessing really happened: you and your relative were living together and she really was helping you raise your child. And she really could legally claim your child on her tax return as long as you didn’t. Being extremely smart—you two worked out your taxes together and realized that it would be better for your child if your relative did claim her and there would be more money in your household for you two together to help in the care and feeding of your child. Nod your head yes, sweetheart, this is the story and you’d better stick to it.
Anyway, after you two filed your taxes, your relative and you had a falling out and instead of using the EIC money to improve the life of your child-which is the only reason you would have agreed to let her claim your child in the first place, she took off with it. You’re concerned that she might try to claim your child again (which this time would be illegal.) How can you prevent it?
The classic answer is—file your taxes first. That’s easier said than done. Also, she might still beat you to it. If she does claim your child, you’ll have to go through the process I outlined above in the main blog post–file your tax return by mail, wait it out, etc..
Even if your relative has a legal right to claim your child again this year, because of the IRS tie-breaker rules, the tie goes to the parent so you win the case.
If she has no legal right to claim your child—you may have to explain how it is that she claimed the child last year without you filing a protest back then. You need to be prepared for the potential questions you’re going to face. This brings us back to having you file first–it’s the easy solution. (Sorry—telling you to file first is lame, but it’s your best shot.)
And of course, you will never let anyone claim your children ever again. You learned a very valuable lesson the hard way.
Hi Everyone,
Thanks for making this post more of an interactive site. I think your questions are great and so many people have unique situations I think everyone who asks a question is helping someone else besides themselves. I try really hard to answer your questions as quickly as possible–sometimes I’ve had to look things up and a couple of times I’ve even called the IRS to get some clarification but I’ve usually gotten back to you with a day or two.
With tax season coming up, I might not be as fast with my responses. I’ll do my best, and I will answer every question, but my turn around might be a little slower. I just thought I should warn you in case you don’t an answer from me right away.
Thanks again for visiting my site.
Hi Ree,
Thanks for your post. The first issue here is “support” that’s where you’re coming from. The rules here a different for claiming an exemption for a “qualifying child” than they are for claiming a “qualifying relative”—In order to claim a qualifying relative (for example: let’s say your ex had his brother living with him and wanted to claim him as a dependent) to claim a qualifying relative you have to provide more than 50% of that person’s support. (Paying for food, clothing, housing, etc.)
But, your ex is claiming qualifying children—the rule is a little different—for a qualifying child, the child must not pay for more than 50% of his support. Did you get that? It’s a little different. I used to teach this stuff in a tax preparer’s class and this is what trips everybody up. As long as the children aren’t working someplace and making more than 50% of what their upkeep costs, your ex can still claim them as qualifying children on his tax return even though you are paying child support.
So, you won’t win anything on the support issue, but you’re not out of it yet. First, if the only income your ex has is welfare and the child support that you pay, then he doesn’t need to file a tax return—he has no taxable income. He won’t qualify for an earned income credit because he has no earned income. There is no reason for him to file and no reason for him to claim the children.
If he does have some taxable income, then you have one of those “tie-breaker” situations. The first rule of a tie-breaker is the parent always wins. Since both of you are the parents, we have to move on to rule number 2. The parent that the child lived with for the longer period of time will claim the child. You have 50/50 custody—if it’s actually 50/50 and your children slept at your house as often as they slept at their fathers, then you go to the next rule. 3. If the children lived with each parent an equal amount of time, the parent with the higher adjusted gross income for the year will get to claim the child.
So if your ex has your children for over half the time, he gets to claim the kids, if not, then you do because I’m assuming you have the higher income, you must or your wouldn’t be paying child support. But there’s one more thing I need to warn you about.
You’ve got a non-tax issue that I can’t help you with but you need to be aware of it. Your husband is getting welfare—or at least some type of disability payment—and part of his payment (or maybe all of it) could be related to the fact that he has custody of the children. That’s something to consider as you get ready to file. Now you claiming an exemption and child tax credit should not hurt his ability to receive welfare for the children, but if you claimed them for head of household status (and EIC if applicable) then that could affect his welfare so do keep that in mind. If his welfare gets reduced, then would you wind up having to pay more in child support? Would it harm your children? These are questions that you need the answers to before claiming head of household or EIC.
If you go the route of just claiming the exemption and the child tax credit, it’s a good idea to have your ex sign an 8332 form to cover both of your backsides. For you, it prevents him from going back later and claiming them for the year. For him, it’s written proof the he’s the custodial parent but he’s just releasing the exemption to you for tax purposes in case something were to come up with the welfare department.
I didn’t mean to give such a long answer to a little question. Sorry about that, but I figured you needed to see the whole picture. Sometimes its the things that seem easy that get really complicated.
@Mandy,
Add $400 for late payment penalty and maybe $200 for interest depending upon when the issue is settled. That should get you in the ballpark. (The rate is currently 3%.) Assume you’d have to pay, but I’d ask for an “abatement” of the penalty on the grounds that you had never filed late or prepared in incorrect return before. The IRS may be a little hard nosed about it when you ask, but they often will abate a first time penalty. It’s always worth asking, worst they can do is say no. You won’t get out of having to pay interest though.
One more thing, if you do negotiate with the ex and he agrees not to claim the kids in exchange for reducing the child support he owes, make him sign an 8332 form for 2008 before you sign anything releasing him of any child support payment. You do want to cover your behind.
Good luck and thanks for your kind comments. Hope you have a very happy and successful new year!
Thanks again, Jan.
I re-worked my 2008 return to see the difference if I don’t use kids as exemptions, only as HoH and EIC – and I’d have to pay back about $1600 in refund overpayment – plus penalties and interest, whatever that amount may be?
I also realized today that because his child support arrears are being managed through DCSS (State of California Child Supp Serv), any refund he gets on his tax returns would be intercepted and paid to me anyways. Duh! How could I forget.
So I think I will wait and see what happens. If I’m forced to refile I will have to pay back a small amount for 2008, and then if he files before April, claiming the kids & is due a refund, I will get that amount. If he ends up owing… then I’ll just save up some money and I will be okay with paying back the $1600 + fees.
He’s about to loose his drivers license for non-payment of child support (it takes like 2 years for this collection method to finally kick in, in California). I wonder how he’ll be able to maintain 50/50 custody if he can’t drive?
Thanks Jan, really! Your passion for helping in your trade shows!
I have a question my ex receives welfare for 2 of our children we have been separated for 8 years we have joint custody of them and share 50/50 visitation and i pay child support since he is receiving aid would i be able to claim them every year ? and what if he claims them would i be able to fight anyrhing owed since i pay child support? he is disabled and and relies on state assistance.. i would appreciate sum feed back thanks !!
Hi Mandy,
Here’s my thoughts, hope this helps.
About 2011—You have 50/50 custody on paper, but where do the children sleep? That’s going to be the crucial piece of information in the puzzle. Lots of families have “50/50 custody” on paper, but in reality they spend every other weekend with the father and Wednesday nights (at least that’s the standard in my neighborhood.) If your case is like that then clearly you claim Head of Household. Your documents also say “primary residence to remain with the mother” which sort of tells me that you have them for more than 50% of the time. If you’re at all worried about losing Head of Household status, keep a calendar of which nights your children slept in your house. Sounds dumb but a client of another tax person I know did this—not really to claim head of household, he just was making sure he knew which nights he had his kids—and it wound up being the evidence that the IRS accepted to prove head of household when his return got challenged. Bottom line, even though you lose the exemption and child tax credit for 2011 I’m pretty sure you’ve got head of household (and EIC if you qualify.)
Now for 2008. If claiming the children were to give him a refund—then if he filed after April 17th it would be too late and it wouldn’t do him any good, the refund would automatically be rejected. But you’re saying that he owes—that’s different because he is legally entitled to claim the children as exemptions which would entitle him to claiming the exemptions and the child tax credit. You still get to keep head of household (and EIC if there was any.) But here’s the catch—if he files, claiming your children it will raise a red flag at the IRS and he’s going to have to provide documentation proving that he is entitled to do so. (Yes, he’s got it, but he’s going to have to work to keep it.)
So, here’s what I would do—this is “Jan the person advice” not “Jan the EA” advice. I’d start a savings account so that you start saving up enough money to pay back the excess tax you received for claiming the kids. (Win/win—if you have to pay it back, you’ve got it, if you don’t pay it back you’ve got a savings account.) Talk to your ex—how much does he get off his taxes if he claims the kids? Negotiate—okay, you’ll deduct that from the child support he owes you—clearly it’s less than $20,000 and clearly it’s less than what you’d have to pay in penalties and interest. I figure, a guy who doesn’t pay his child support—well reducing something he wasn’t paying anyway isn’t really hurting you.
If he won’t deal, you’re going to eventually get stuck paying back that money. The IRS really doesn’t want to deal with your 2008 tax return so if you two can settle this without their interference you’re actually doing your country a favor. (I’m serious about that.)
Jan, I hope you realize how much you’re helping those of us out there worrying and fretting over issues that are complicated!!
Our decree has no conditions, so 2008 is clear he is to get them as dependants. We have subsequent orders that become more clear going forward, but alas I am stuck for 2008.
You said “if he doesn’t make a claim by April 17, 2012 he’s SOL. I know that sounds horrible and sneaky and you’re trying to be on the up and up–but he’s had three years to try to fix it. Snooze you lose. (Maybe I’d feel nicer to him if he’d paid his child support.)” —- which I definately appreciate, as he owes me over $20k child support arrears!
Now… what if he isn’t due a refund but actually has to pay (even when including the three kids as excemptions) in 2008? Does he still have the same deadline to claim the kids or to fight my filing? He hasn’t filed taxes since 2005 so I’m hopeful he will miss the April deadline as well. He does know that I filed in 2008 (via some court paperwork), yet just keeps “claiming” he’s going to take me to court and force me to re-file.
Also, what about if 2011 is his year to claim them again, can I still be Head of Household? or who would claim head of household? We currently have 50/50. However, I made sure our most recent court order that gives us 50/50 also says “primary residence to remain with the mother”. Does this help me file as HoH every year unless it is changed?
@ Jennifer,
You’re welcome. That’s one of the problems with EIC though, is that it’s so complicated, people can do the wrong thing and not know it’s wrong. And–there are lots of paid tax preparers who get it wrong too. The laws changed a few years back–what used to be perfectly legal is now illegal. I think lots of people of made the same mistake.
Wow i really didnt think that was fraud at all..i thought that if you supported that child for the year then you could claim that child..but im really not sure if he claimed “other” or “son” last yr n i would not want to get myself in trouble because, well, that would just be dumb. but thank you so much for your help
Hi Mandy,
Thanks for your post, you’ve got some good questions.
Number 1–Back in 2007, you weren’t officially divorced yet, but from your post, I can tell that he wasn’t living with you for the last 6 months of the year (that’s important–those last 6 months of the year.) Because of that, you can claim head of household and claim the kids–no problem. You’re good for 2007. Even if you weren’t, it’s too late for him to try to make a claim for 2007, so again, you’re good.
Number 2–now we’re talking about 2008. The divorce decree was in effect. For 2008 divorces, if the decree says that your ex may claim the kids–it’s only good if there are no conditions. I can’t tell from your post if there are any or not. You need to look at the decree–does it say he gets to claim the kids if he pays child support? That’s a condition. Or, does it just say he gets to claim the kids period. That would be no conditions.
If there are no conditions, he gets the exemption (and the child tax credit with it.) If there are conditions (like paying child suport) then even if he pays child support, he can’t claim the kids without you signing an 8332 form. (Which of course you only sign if he pays up, right?)
Now for 2008, even if he really does get to claim the kids, you can still claim head of household and EIC because you had them for over 50% of the time. (You did a good job of computing that out.)
Okay, here’s one more thing–has your ex said anything about it? The reason I’m asking is, we’re talking about 2008–if he doesn’t make a claim by April 17, 2012 he’s SOL. A person only has three years to claim a refund so if he hasn’t filed any paperwork yet, I’d keep quiet about it. I know that sounds horrible and sneaky and you’re trying to be on the up and up–but he’s had three years to try to fix it. Snooze you lose. (Maybe I’d feel nicer to him if he’d paid his child support.)
So for 2008–bottom line-check for conditions, if no conditions–I’d keep quiet if possible. Worst case scenario, you still keep head of household and EIC.
Hi Jan,
Thank you so much for this message board! You Rock. Some background: My divorce finalized 11/2008 and we share three kids.
Question #1:
In November 2007, a temporary child support order was put in place for my ex to start paying child support while we went through the divorce process (a year after he left without helping at all in the meantime). The order does not specifically say my ex can claim the kids in 2007, yet his child support calculations were based on his filing with the 3 kids, starting November 2007. He started having 42% visitation at this time. So, up to November 2007, I had the kids 100% of the time and he paid us no support. Since the order doesn’t specifically say he could claim the kids on his returns (and it doesn’t say I could or could not either), I filed and claimed the kids in 2007. Was this within IRS rules?
Question #2:
Our Final Decree (11/2008) states my ex can claim the three kids in 2008, then I can in 2009, alternating years thereafter. Beginning with this November 2008 order, we started sharing 50/50 custody (yet prior to November 2008 all three kids were with me 58% of the time, he had visitation which equalled 42%). Honestly, I thought this was unfair for him to get the 2008 filing since he wasn’t paying the ordered child support and the kids were with me >50% of 2008. I needed money to support us, and I ended up claiming the kids in 2008 out of desperation. I spoke with an accountant who said it would be okay. Was I within IRS rules to claim them in 2008?
Hi Chris,
Thanks for your post. I can’t believe you’ve had to battle the same issue over and over again for five years. I take that back, I can believe it, but you’re right, it’s unacceptable.
Here’s the catch–because of all the privacy laws, they can’t tell you anything. It’s a little crazy, but you’d think he’d stop. The fines and penalties are pretty servere. Is it possible that it’s someone else who is claiming your child? You’d think that since the ex has an amicable relationship with your family that it might come up in conversation? That’s puzzling.
My only thought is that after 5 years the IRS is a little tired of policing this case, hence the expanded audit. Usually, once they determine a fraud they flag the social security number and the person is not allowed to claim EIC any more. If there is no EIC involved, then that could be the reason they’re not flagging it. (EIC is worth big money, a regular exemption, not so much.)
I wish I had a magic answer for you, but you know I don’t. I’m sorry. You’re going to have to complete that paperwork and send it in once again. (And from the sound of your story, you may be doing this for a long time.)
It might be worth talking it over with the ex. It could be–it wasn’t him. It could be–his little passive aggressive way at digging at your wife. Or maybe he honestly thinks he’s supposed to claim the child. (You’d think that after 5 years, he’d figure it out but maybe he’s slow.)
But I do hope that everybody reads your post because it’s important to know that these things take a lot of time to solve and even if you win, you may still have to keep fighting. Sorry yours is dragging out so long.
I have to say, I agree with your advice, but the IRS isn’t really as helpful as you might say. We’ve “won” the audit war for 5 years, and my wifes ex is STILL claiming the child each and every year. When we call the IRS, they tell us that they can’t use historical information, because custody can change, and we get an audit notice every single year. We send in mountains of paperwork to prove our case. We have no idea what, if any, penalty is applied to him, but he’s never mentioned it to us once, and our relationship is amicable. My fear is that the IRS might have been giving both of us the benefit.
Now the IRS has us in an “expanded” audit, where we must provide even MORE details and paperwork, school records, calendar dates, etc, even though we have submitted everything successfully for years. The IRS claims they can’t intervene at all, they can’t provide us any information on his return status. They tell us we simply have to contact her ex, but we are put into the position of having to police someone elses tax returns. I find this unacceptable.
If you have any advice, would love to hear it. I’m probably going to contact my state and federal congresspersons as well, because they may have the ear of someone higher up at the IRS.
Thanks.
This is for Ammie–
Because you were divorced in 2006, you can use the pages of your divorce decree to prove that you have the right to claim your son and daughter. The key to this is that your divorce decree can’t have any conditions on it. It can’t say that you get to claim them if you do this or that (like paying support), it must just say you get to claim them.
Since you do have equal custoday, technically either of you can claim the children for head of household and EIC purposes.
Here’s the thing: you get the right to claim the dependency exemption–and with that the child tax credit. Because he does have equal custody of the children, the EIC and head of household status is up for grabs.
Was he naughty to claim your daughter without permission? Yes. But can he be forgiven? It might be a good idea, and here’s why. 1. He’s the father of your children and he can’t be all bad because he has 50% custody–let’s face it, you woldn’t allow that if he was all bad. 2. You might gain more for your children by working together than by fighting.
If you and your ex can be civil to each other for the sake of the kids (and I get the impression that you can otherwise I wouldn’t suggest it) you can work together on your taxes to see what’s the best overall outcome.
Straight up–you should claim 2 exemptions, 2 child tax credits, 1 for head of household and 1 for EIC and 1 for child care credit if it applies. He should get 1 child for head of household and 1 for EIC and 1 for child care credit. That should be your standard for filing. From there, see what happens to your tax liability if you claim both kids or he claims both kids, what gives you the biggest bang for your buck. You take the difference and plug it into savings for your kids to go to college.
Of course, this only works for exes who get along and are both in tune to what’s best for the kids. I would have you use two different tax people (in case you have a conflict of interest issue.) Very few people have exact 50/50 custody, but for those who do, this can be a big help.
This answer is for Wendy–
You have custody, you live with your mom. Either you or your mom can claim your daughter, whichever works out the best for your family.
The court order will not be uphelp by the IRS, only a form 8332 will allow him to claim her.
Hi, My husband and I divorced in 2006 in Mississippi with 3 children. Our decree stated that I have “day to day care and control” of our children (physical custody) and joint “legal custody”. Also, states that I am to claim the youngest 2 (son & daughter) and he was to the claim the oldest (son) until all children become of age.
I recently recieved a notice from IRS that my daughter was claimed by someone else. Can my ex claim her if I didnt give him permission? She lived with me for 6 months and him for 6 months yr. I have allowed him to claim my youngest son just being fair because he had been living with his dad, but now that he has went behind my back and claimed my daughter as well, I want to make sure that legally I can claim both my children in the future because the divorce decree states that I am to claim them. Thank you.
Hi Jan,
My question is sort of a repeat of some previous posts but I wanted to get absolute clarification on it. Ok, here goes. My ex & I were never married and we have an almost 10 year daughter. In May of 2009 we had a new court order put in place that states that unless I make at least $20k/year, my ex claims my daughter. Should I meet that stipulation, then I have to provide proof to him and even then it can only be every other year. Now I agreed to this b/c he threatened to take her for more visitation. Which neither my daughter nor I wanted. So I gave in. At this time, I had no idea why my daughter (at only 6.5) didn’t like going to her dads all of a sudden (he had just moved put of his parents house and in with his new fiancé). Fast forward to Aug 2009 just a few months later when my daughter was with him for her first full week of visitation. She called to check in with me to say hi and at the end of the conversation, she didn’t hang up the phone. I overheard her father interrogate her about things I might have said about him to her and when my daughter didn’t answer his questions the way he wanted, I heard him slap her across the face! I immediately called the police and she was removed from his home. Long story short, we are 2 years past that horrible ordeal and he has not learned anything from his court ordered anger management and what not. Because of all this, I do not abide by the court order that puts my daughter back into the same visitation schedule before the abuse was revealed. She only feels safe going for her visits to her grandmothers on Monday nights when she knows she won’t be left alone with him. So I have not filed any modifications in regards to the tax situation (or increased child support, which should have been reviewed & raised in March of this year [2011].) because my child’s safety, well being and peace of mind are obviously most important above all. I wouldn’t fight him for filing/claiming her for 2009 because I didn’t work but have been since Nov of 2010 and would like to claim her if possible. I never signed an 8332 form.
I should also mention that even though I am in contempt for not letting her go to visitation with him (every other weekend, 2weeks in summer, etc…), he has NOT filed contempt charges against me (it’s been almost a year now since I cut off the visitation). He knows I want to make changes to the order and he also knows that he should be paying more child support.
My daughter & I live with my mom (always have since she was born), I have sole, physical custody and he has only visitation (as previously stated). I claimed her every year till 2007 when I was laid off. I hope I’m not forgetting any info you may need.
Thank you in advance for any help you can give me.
Hi Shelly,
Thanks for your question. My advice here is that your husband needs a new attorney. He can talk to the IRS all he wants, but if he doesn’t listen to what they’re really telling him it won’t do any good.
I’m not a lawyer. If someone got caught drunk driving and they called me to help them, well that would be pretty stupid (although I do know a good attorney I could refer them to.) But I myself would be worthless trying to help someone in the courtroom. On the other hand, I’m pretty darn good at this EIC stuff.
Even though I wasn’t at that meeting, I can tell you what happened. They called the IRS and the IRS agent said that paying child support was totally irrelevant to the case. Your ex-husband interpretted that as meaning he didn’t have to pay child support and he still gets to claim the kids. WRONG!
What the IRS agent meant was that your husband paying child support was irrellevant to him being able to claim the kids. Because there is a “condition” to his being able to claim the kids, it voids his ability to claim them on his tax return.
In plain English: your divorce decree says he must be current in child support to claim the children on his tax return. The IRS says that any divorce decree that has a rule like that is a worthless piece of paper in tax court.
So when you file your taxes, Shelly, you claim the exemptions, the child tax credits, head of household, and if you qualify–EIC. (Oh, and if they’re in daycare, you claim the child care credit too.) It’s all yours!
The only way he could claim the dependency exemption (and the child tax credit) would be for you to sign the 8332 form which of course is not going to happen unless he brings all of his child support payments current, right? Please, do not sign an 8332 form unless all of the child support payments are current and the check has cleared the bank. And never sign away more than one year at a time.
One final thing, just so you’ve got it. The rule I’m using is out of IRS Publication 17. Here’s a link to the 2011 edition: http://www.irs.gov/pub/irs-pdf/p17.pdf. The information I’m talking about is on page 29 starting near the bottom of the first column. It’s always nice to have the actual IRS document in hand it you’re arguing with attorneys. I’d wish you luck, but you don’t need it–your case is a slam dunk.
Our divorce was final in 2000. Our decree states that my ex-husband can claim our son in odd years if all child support is current. He is behind on all medical bills. We have joint custody with me having physical custody. He is telling me that he has talked with a lawyer and the IRS and has been advised that he has the right to claim him even though is he is not current. He has only been able to claim in 2 times in the past 10 years because of him not keeping his medical bills current. I feel that he is just bluffing me but he did do this one year before.
Hi Jennifer,
You and your ex just broke up last month. I’m missing some information here so I’m running on the fly–if I’ve got it way wrong, drop me a line and I’ll set it straight.
Your ex is not the father of your son but he wants to claim him.Here’s the big question: are you two married? If you’re married, even though you two have split–he has a legal right to claim your son, even if he’s your son by a previous relationship.
If you and your ex never married, then he has no legal right to claim your son this year in any way shape or form. If you were together for the entire year, he could probably claim the dependency exemption, but not EIC.
You asked if there was anything you can do to stop him from claiming your son. If you are or were married, absolutely not.
If you were never married, here’s the kicker, and I’m sorry but–you allowed him to claim your child. If he only claimed your son last year as “other” because he lived with him for the full 12 months and only claimed a dependency exemption–then all is cool. If he claimed your child as “son” and took an earned income credit, and you allowed it, well then you’re also complicit in EIC fraud.
I know you weren’t thinking–hey let’s go commit fraud, I think most people aren’t thinking that way but that’s what it is. The reason I’m telling you this is not to scold you but make you keenly aware that hurting your ex could come back to bite you.
So here’s your situation-you don’t file taxes at all–that doesn’t give you much power in this situation. If you had any income at all, you could file a return and set the whole audit thing into motion but that’s not really helpful to you or your child.
You could file a form with the IRS saying that you know he’s cheating on his taxes by claiming a child that is not his son: http://robergtaxsolutions.com/2010/11/how-to-report-tax-fraud/
You’ll never, ever, know what the IRS did about it, if anything. But, I highly recommend you don’t do this–because for 2010, the only scenario where your ex was cheating–was the one where you would be considered his accomplice–you don’t want to report him for that.
You could sign over a form 8332 to your son’s real father, allowing him to claim your son as a dependent (not for EIC, just a dependent.) But that guy’s out of your life now and you’re setting him up for IRS notices fighting the ex boyfriend. (It would be pretty nasty of you to do that.)
You also asked, are you entitled to the money if he does claim your son? Let me say it back to you the way the IRS would hear that question, because I’m certain that you don’t mean it the way it came across. (Even though I don’t work for the IRS, I’ve worked with them enough to know how they hear things.) My IRS ears heard: “So if I let my ex-boyfriend cheat on his taxes by claiming my kid, how much of that illegal money do I get?”
I know that’s not what you meant. Obvioiusly that’s not what you meant, I just wanted to make you aware of how the IRS looks at these situations. You’re looking out for what’s best for your child because money your ex would receive from the IRS is really intended for the health and safety of your child.
Right now though, you don’t have much on your side. Is your ex wrong to claim your kid? Yep. Is he way wrong if he claims EIC? Definitely! Does it help you or your child to fight it? I’m not seeing any benefit to you. I’m really sorry, but I’m not seeing any upside for you at all.
First to Diana and anybody else who’d like to pay me for my bog posts–
Gee thanks!. That’s so totally cool. I do run a business and I do like to get paid, but I also know that this particular page is more of a public service than anything else. That said, my blog does help drive business to my company and when people post to it, you make me stronger on the internet. So in reality, when you post a question to my website you’re helping my business grow so thank you for helping me.
If I do happen to help you and you feel you’d like to pay–please pay if forward. Put some money in the Salvation Army bucket, or buy some Girl Scout cookies or something like that and we’ll call it even. Thanks.
ok so I was with my ex for 2yrs n we just broke up this month, he isnt the father of my son ( his father isnt around) but he did claim him on his taxes last yr..im not working so I dont file..but now he is still planning on claiming my son on his taxes this yr..is there anything i can do to stop him? if he does file am i entitle to the money? or is there anything i can do after he files?
Jan, CAN I PAY YOU FOR YOUR HELP? I would feel less guilty about being able to ask you these questions…..
Other grandmother tried to do her taxes online, and it would not accept them 3 times….when she was trying to claim the baby…I am guessing she was answering the questions wrong. She went to one tax preparer office, and they would not do her return. She finally went to another office, and had them do the return.
Will I be reprensenting myself against a tax office professsional? Don’t they have representation in case of an audit included with their service?
Should I be looking for a tax person, from your link, sooner than later?
Thanks again, again,
Diane
Hi Diane,
I’ll share my soapbox with you any day! I do take out of state clients (I specialize in multistate tax returns.) And, you do have a standing invitation to visit me if you’re ever in St. Louis, but if you need some professional help–I’m going to refer you to someone local. This link is to the National Association of Enrolled Agents website, it’s the locater page. You type in your zipcode and it will find who in your area is an EA like me. Here’s the link: https://portal.naeacentral.org/webportal/buyersguide/professionalsearch.aspx?Token=
Sometimes, especially with cases like yours, it’s best to have a friendly face and advocate that’s right there. I can’t say things like, “Do you want me to run them over with my car?” on the internet now can I? And, I’m kidding of course (really–I’m really kidding, in case anybody is monitoring this, I’m kidding!) The point is, it’s a good thing to be able to meet with somebody in person and be able to speak freely in confidence. Check out the NAEA site and interview people. If you don’t like the first one, try someone else.
Back to business: Your daughter should not write a letter for the other grandparents. My gut reaction is that it will turn around and bite her in the behind. Besides, the IRS won’t accept a letter from your daughter–she’s a relative. The documentation must be a non-relative–at least back when I was doing EIC audits the IRS told me that was not acceptable–because relatives lie. (Now you can understand the IRS position there.) So even if she did write a letter, I’m not sure how much weight the IRS would give it. It’s still better for her not to write one though.
Good luck, you’ve got a lovely mess to deal with and I certainly don’t envy you.
Jan,
Forgot to mention., no sweating bullets,…they have no idea about penalties and interest. They have done no research, and are still expecting my daughter to write some kind of magic letter, lying about where they lived, so they can have the $ they received.
Diane
Jan, Again…thanks for your suggestions…
My variation of the solution was to do something like you suggested. Pay me the difference an ammended return would have on me. Pay the remainer to an account for expenses for the baby.
When my daughter has suggested some ideas to her boyfriend, she has been told that flat out, they will not co operate. The father and grandmother think I am in the wrong. They want my daughter to write a letter, and lie about where they lived, and that she gave her EIC to the other grandmother. I explained to my daughter that no one can give away a tax credit…..and no letter suggesting such would help. The father and his mother do not have problems with not paying bills, or penalties, or interest,, and are not concerned that they got the money, and yes, spent it. I don’t think they are concerned about the IRS, but I know better….I would rather not be owing the IRS, and once again, it is wrong.
In a perfect world, this could be worked out, but we dont have that situation.
I dont really care about the 16 weeks, but I would like to prevent another EIC for this tax year. I am trying to work on my taxes now, but since I have a combination of income, I may not have all of the forms/1099’s/w2s in time. I think I can figure it out pretty close, and I may try and file as early as I can.
If I get “rejected” in the computer, I will mail it.
The ironic part of this is, these people do not believe in “taxes”…..Yet “taxes” pay their health care and their food stamps.
I think I want to purchase a used soapbox!
You have been so very helpful. Too bad you are so far away….I know people needing an accountant/tax person. Is it possible to have out of state clients?
Thanks again….