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
Thanks for the advice. I know that we’ll be fine, the situation is just frustrating. Like I said, there’s a lot more to that story, and I know for a fact that the social worker is not as “neutral” as she claims to be. But again, that’s another story for another day. Thanks again for the advice and all the pointers.
Hi Josh,
Hopefully I’ve got some answers for you. First, about the court ordered exemption: http://robergtaxsolutions.com/2012/01/court-ordered-exemptions-and-the-irs/
That post will basically tell you that you can’t claim an exemption without a form 8332.
Second–your ex isn’t feeling like signing one. Here’s the deal — it sounds to me like she can’t really take advantage of the child tax credit or dependency exemption, because her income is so low. She’s living with her parents–she might be letting her parents claim your child–that would make more sense (money wise) but you never know.
You can try to negotiate (cheaper than going to court)– She signs the 8332 so you can claim the exemption and child tax credit so you can catch up on the child support.–it’s worth a try.
I’m guessing it won’t work because she’s probably letting her parents claim the child, in which case–I’m not a lawyer, I’m not allowed to give legal advice–you’ll want to contact your lawyer to see if you need to file contempt charges. Here’s your problem–what does substantial compliance mean? I have no clue. The IRS won’t look at your decree so it’s worthless there.
Now if your ex is claiming your child herself–it should be easy to get her to release the exemption. (Because I can’t see it doing her any good.) But I see you banging your head against a wall. I’m sorry. Good luck though.
Hey Cesar,
You have a couple of options:
1. It sounds to me like your ex only claimed EIC and left the exemption for you. That’s called splitting an exemption. She will sign a form 8332 and you will claim the exemption and the child tax credit while she claimes EIC and head of household. Here’s more info: http://robergtaxsolutions.com/2011/11/split-exemption-claiming-one-child-on-two-tax-returns-%E2%80%94-the-legal-way/
2. You can fight for the whole thing–you’re hinging on 187 days versus 183 days–you’ll have a fight on your hands, but technically you would win. But–you’d better make sure you’re ammo is 100% because at 187 days you don’t have any wiggle room.
3. I’m not allowed to give legal advice, so you’d have to ask your attorney about filing a contempt charge. The question I would ask is, how much will it cost you and how much would you get if you did? Make sure you know what the benefit would be before you spend money on a lawyer.
@Star Grace,
Yowza! I’m guessing you mean that the records are gone from anytime before November 2011, not after 2011 because you wouldn’t care about after.
You said you had a lease right? Are the kids names on it? That would help. I’m guessing they’re too young for school, that’s always best, school records.
You said that you received medical benefits–if the kids were little then you had to take them to get their shots. What about the shot record that you should keep for them? That’s a medical record.
If you can’t send copies of your social service records, you could have your case worker write a letter on official letterhead stating that you are the children’s parent and that they lived with your from January 1, 2011 until August of 2011. Someone over at social services must have some knowledge of you.
Hey Julie,
You’ve got a perfect situation. You take your daughter’s new social security number and file your 2011 tax return. Then you go back and amend your 2010, 2009, and 2008–you must get the 2008 in by April 15th.
The form you need is a 1040X. What your changing is that you are “adding an exemption.” If you qualify for EIC you will say that in the comments as well. If you qualify for EIC, be sure to send the EIC page with your amended return. You’re not changing anything about the income–just the exemption and the credits that go with it.
This is normal. You will write in the comment section that you were unable to claim your daughter on your return before because she did not have a valid social security number and now she has one.
This is not a red flag issue, it’s actually fairly normal. Usually I’m doing this for immigrants–their children have ITIN’s but not social security numbers so they don’t get to claim all the tax credits, once their children qualify for a social security card, I go back and amend the old returns. Common practice. Not a red flag. Good luck.
@Stephen,
The short answer to your question–No, the IRS will not take her story and just assume it’s correct. She will have to provide the same level of documentation that you will.
Also, the IRS never reveals who filed a child on their tax returns. Never–although it was probably obvious, but the IRS did not tell her that.
Frankly I’m surprised that you’ve been issued a CP 75 so quickly. Standard operating procedure is for your ex to paper file and then the process begins.
Right now, your job is to get your ducks in a row and get your paperwork in. The lease and the medical bills are going to be more effective than your photos and Facebook account. But it can’t hurt to add a little human side to your case.
I’m sort of wondering–who claimed your daughter last year? I’m thinking that might have more to do with the IRS holding up your EIC than anything else. Something smells a little fishy. Please post again about what happens and how it plays out. (If you don’t mind.) I think your story will be helpful to other people dealing with this. Thanks.
@JesB–
First, you should receive a letter from the IRS asking if you made a mistake and giving you the opportunity to amend your return. (If you’re in the wrong–amend and be done. If you’re in the right, you do not amend.)
Then you’ll get a letter stating that you’ll need to prove that the children lived with you for more than 6 months of the year. Or–for more time than your ex had them. That’s where school records and stuff like that comes in–you round it up and make copies, and send your evidence to the IRS.
Eventually, the IRS will make a determination as to who should have the higher claim and you will be billed for the refund that you shouldn’t have gotten–or your ex will.
Generally, it’s all done through the mail. Hope that helps.
One more thing–I’m a little worried about you because your ex is a bully. Don’t let him talk you into just giving him part of your refund. If you are in the wrong and shouldn’t claim your kids–then you pay the money back to the IRS–not to your ex. Remember–he’s a bully. If you pay him and he decides he wants to still punish you, then all he has to do is file his return after you’ve paid him and you’ll be out the money you gave him plus be out the money the IRS wants back (plus fines and penalties.)
This is a case where even if you were wrong–you want to put the power of the federal government on your side. Dot your i’s, cross your t’s, and do everything by the book so that he can’t come back and hurt you later.
@Samantha–
Everyone but one of the social workers is happy to help. Just forget about the other social worker. Even if she does write a note of support for your sister–you’ve got overwhelming evidence on your side. Don’t lose any sleep over it. You’re good.
I have another question. This may be more of a legal question, but I thought I’d try here first. I’ve contacted the school, daycare, speech therapist, and both sets of social workers. Everyone except for one of the social workers has been more than happy to provide us with the information that we need. A quick note about the social workers. They are in two different counties. I won’t give the names of the counties for security sake, but I’ll just say County A and County B. County A is where my sister was living when the children were taken away, and it is also where we are currently living. County B is the county that my sister moved to while the children were living with us. The social worker in County A had no problem giving us a note stating that the children lived with us from May – December 2011. The social worker in County B told us that they would not give us a letter at all. I’m just wondering if they have the right to deny giving us a statement that the children lived with us from May # to Dec #? Due to circumstances that will take way too long to get into here, I do have a strong reason to feel that the social worker is “bending the truth” in order to support my sister. She says that they will be “neutral” in the matter. But, what if she’s not being neutral? I have a feeling you’re going to tell me that I need to contact a lawyer, but I wanted to check anyways. Thanks in advance.
Oh, and what form do I fill out to file an “Appeal”?? 🙂 Thanks,
I went to H&R Block last week to file our taxes for 2011 and we have an agreement with the ex wife that we get to claim the child (1) every other year. Now, 2011 was our year to claim. When we did the efile, it got rejected that someone else claimed that SSN. We contacted the ex wife and she said that she hasn’t even done her taxes yet. What other possibility could it be if the ex wife didn’t do it? I’ve already filed for the other 2 kids and what not, but I’m upset that my return went from $5200 to $3500 becuase of (1) child dependant. I plan on filing the “Appeal” after I receive my first federal return. What should I do? I am angry that the ex is lying to us…but what else could it really be? Any help would be great. Thanks
also im not sure if i filled out an exemption for child custody back then to the irs. if i did am i out of luck on this deal? he barely works and doesnt pay child support nor any other expenses all year until dec every year he pays in full his back support. just so he can get his tax breaks on his son.
My husband has been divorced from his ex wife for 11 yrs. We got married last year and this year we filed our taxes, in which we claimed their son (per their divorce decree he gets to claim him every other year – odd years), anyway, we claimed him and I guess she went to claim him as well, and called pissed off. She is now saying because he is ‘behind’ on support (medical bills is the ONLY issue, he has been regularly paying child support for over 4 yrs each month), that WE do not have a right to claim him. I think it’s because she’s pissed that were married now, and figures she can use the ‘single mom’ card. I have read some articles about how the IRS doesn’t care about what court documents say – what would you say we should do? He has claimed him every odd year EVEN when he was behind, but now that were married she has an issue with it (I think she realizes since he won’t be filing head of household she will get less money – all the refund always goes to her anyway). Not sure what to do – if anything. Any suggestions?
I got divorced in 1997 and realized i have not been claiming my son since then. now im reading that maybe i should be. the divorce decree says he claims him every year and i claim our other son but the laws state he has to be living with his dad for more than 6 months out of a year and has not been. i already filed on saturday and dont have notice that its been accepted yet but what do i do? if i can claim him i will get more money in return. do i file an amended return. i did it online using software.
Hi,
Me and my ex are separated and we have 2 kids together we both agreed that I would carry one and he carry the other ( both kids live with me but he gives me money for them every month that is not court ordered) he was audited last year but there was no way he can prove our son lived with him (school, daycare, doctor etc is all my address) so he wasn’t able to get a refund for her. My question is I will be filing both kids this year but can I do an amended return from last year adding our son that he was audit with?
Hi! I got divorce in the 2008, and my ex be claiming our son. I don’t work..I get ssi. And he does work..be when he claimed my son he doesn’t tell me, and always give me some of the money when he wants.I have papers stating from his lawyer that he has no right on claiming my son for taxes, due to the fact that he doesn’t live with him.I have residencial custody..and he only see my son 2 day a week. I want to know if he can claimed my son?
I started paying child support on Sept 3 2010 and in that child support decree it says I get to claim my son for tax dependency purposes if I’m in substantial compliance of my support order and health care obligations, however I fell behind on my support because I was laid off this winter and now my x girlfriend says she is claiming my son because I was not compliant with my order. I called the csea to ask if I was compliant and they will not give me a straight answer. I have carried health insurance on my son and paid most of my support for the year and he stays with me part time, his mother lives with her parents, so has no bills and is on government assistance therefore sheds out hardly any of her own money to support our son. Should I claim my son for dependency purposes or is that impossible without the 8332 form. This website is the first I have even heard of this form, so does that make my child support decree useless? I want to ensure for future years I will get the benefit of claiming him because I support him and that’s my right I do not plan on trying to get the head of household credit or EIC because I’m not the costodial parent. Please help me! I’ve tried contacting everyone with this question and it seems no one wants to give you a straight answer on what your right is and what to do. Thanks in advance for your time.
Hi.
Thank you for taking the time and reading and replying to my questions. So where do I start. I have been legally separated since 8/2005 My divorce was finalized on Oct. 2009 in Washington State.
In my divorce decree the ex wife and I agreed to claim credit for child every other year. Which we had been already doing this for the last 6 years any how it was an easy decision.
I was alotted odd years as she was given even years. I didnt claim my son at all last year 2010.. I went to file my taxes this year and it was DENIED. Due to the fact that she had already claimed EIC. I called her and initially she stated she did not claim him then she changed her story that she did. But that I could claim another credit for Cruzito. The Child tax credit? what does this mean and what makes it okay for her to do this.
I pay my child support, I am current on this. We share him I get him 5 days one week, one day another and rotates.. So approx. 10 days out 8 month. Then I got him for 7 weeks during Summer breaks and 2 weeks for family vacation additional. I also got him for 2 weeks during christmas break, and 10 days of holidays share. I calculated that I actually physically had my son just under 187 days out of the year 2011 because we didnt always abide by the parenting plan and our son wanted to stay more time with me then go home. She was in agreement when I did keep him extended time.
I have tried to talked to her and rationalize this situation, and let her know she is wrong for doing this… but she wont listen and is steadfast on keeping her return.
So is the best thing for me to do.. with the facts above to file contempt 1, and 2 go ahead and file paper claim and just go thru this regamaroar with her.
According to divorce decree and parenting plan, no one is the “custodial parent”
I was the “petitioner” of the divorce. But we spend almost equal amounts of time with our son. What do I do?
I filed my taxes electronically, and the IRS accepted the return and on the IRS website it stated I would receive my refund by Jan. 30. I have a 2 year old daughter who has lived with me for more than 6 months in 2011. I have visitation, and the visitation is every other week, so I have her technically half of the year. The mother and myself have never been married and there is no document in any court file stating anything about who can claim our daughter as a dependent on our tax returns.
My daughters mother called me and told me that she just finished filing her taxes at H&R Block and that she was going to receive about five thousand dollars because she said that she claimed our daughter even though I told her prior to the tax season that i was claiming her. I informed her that her return would be rejected by the IRS, yet she called me a liar. Two days later she called me and asked about what I filed. I told her I filed for all credits. She told me that her tax agent contacted IRS and that IRS told them that it was illegal for me to claim our daughter. I pass all of the tests which the IRS uses to determine who can claim what on their return.
Recently, I checked the IRS site, and it is now saying that my return is being reviewed and that I many not receive part of my return until I send them back their paperwork which I am waiting on to arrive. I then called the IRS to question the incident as I saw it from their website. The agent informed me that I have the CP75 code, meaning they will retain the EIC portion of there fund until they receive documents supporting my claim proving that my daughter is in fact my daughter, and all of the other tests.
The other day, my ex called me and stated that H&R Block told her that the IRS has given her the opportunity to claim our daughter now. She said that she will now be claiming our daughter and that the credits and the EITC will be hers and there is nothing that I can do about it.
I have done an abundant amount of reading online about CP75 and other tax related laws pertaining to EIC fraud and the likes. I informed my ex that if she did in fact file and the tax prepared allowed her to file, under what I would believe false pretenses since her return was originally rejected because she used the same childs ss number as I did, then they both would potentially be in trouble.
Also, I question her statements, I do not believe the IRS tells anybody about who claims what on their returns due to the privacy laws, especially under taxes and social security.
A question. If my ex concocted a believable enough lie and told it to the IRS, would they automatically take her claim over mine without any evidence except for what she tells them?
Also, I have church records, facebook posts, a lease with my daughters name also on it, babysitter receipts, legal documents, calendar dates, some hospital bills, and photos, all of which which show the dates that my daughter resided with me.
As for the photos, would the IRS accept photos as documented proof if the photos are saved from my phone with the date and time stamp and I can prove the location? I have around 300+ photos of me and my daughter from 2011. Will this be sufficient evidence to prove my case or to prove an affirmative answer to the questions in the CP75?
ok…. i went to file my taxes and of course it was rejected… someone claimed them. i have had my kids from the time they were born up until august 2011….. which means 8 months out of the year 2011 i had them. during that 8 months i received state benefits, i.e. foodstamps medical and cash benefits which is all i have to prove i provided care for them and that they were in my household. (and a lease) when i went to the agency for proof that said their system had been updated and that they had no information past nov. 2011. what can i do. we have joint custody but i have had them.
I have a unique situation. My daughter is 13 years old and has never had a SSN although she is a US citizen. I have applied for one for her and hopefully all will go well and she will receive a number so I can add her to my 2011 return. Her dad and I are divorced. I would like to amend my last 3 years of returns to add her since I have always had primary custody. How does this process work? Will it raise flags?
What is the process for all of this. I mean I have paper work that is dated sep 28 2011 that aug 28 2011 he was given full custody. My return has been accepted. He told me not long ago that he was faxing things to the irs. Thanks again for your help!
@JesB–okay the grrrrrrrr was really lame. Sorry.
Hey JesB,
First of all–you are not going to jail. I haven’t seen the IRS throw an actual parent in jail yet for claiming a child. (By the way, if anybody knows of anyone who’s actually been thrown in jail for EIC–a parent not an actual scam artist–they do go to jail, please post about it to give the rest of us a reference point. Thanks.)
Now–how bad were you? I’m a little confused about last year and this year (occupational hazard, it’s 2012 and I’m working on 2011 taxes. I never know what year it really is.)
So–lets say you lived with your children through August until the divorce–then you had custody for over 6 months and you have no problem–okay you have a problem but a chance of winning.
But–let’s say you and he lived apart and he had them for a week and you had them for a week up until August–then you’ll lose because you can’t prove you had them for over 6 months.
The parents could claim the children if the parents don’t, but a parent did (you!)
So, my thing is–first figure out if you really had a legitimate claim to the kids. You might want to contact a lawyer–I mean–he was granted custody but then he gave the kids to his parents? Is that cool with you? Are they good people? If they are good people, and they’re the ones supporting your children, maybe they should claim the exemption.
When you get your refund, stick the money into a savings account. Don’t touch it until you figure out what the situation is. You might want to sit down with a tax professional–do you really have a claim–if not, what’s it going to cost you, and how to pay it back. If you amend your return before April 15th, there should be no fines or penalties.
Don’t be bullied. That’s why you want a pro on your side. (I once had a client I couldn’t help–he needed a different kind of expert and I recommended him to someone else. He wanted me because he thought I’d do a better job of “beating up the IRS agent.” I don’t beat up IRS agents, or anybody for that matter, but you want a pit bull type person who knows the law and won’t back down.)
Here’s a link to find someone in your area: https://portal.naeacentral.org/webportal/buyersguide/professionalsearch.aspx
Good luck. Be prepared for the worst, but stand your ground if you’re in the right. You won’t go to jail. And remember your pit bull, grrrrrrrrrrr!
Thanks so much for all your help! 🙂
My ex got divorced in 2011 and before aug 2011 we had joint custody. Last year we were to file together and then split the return, but he decided to go behind my back and claim the kids. he filed head of household. He was given primary in aug. But they did not live with him but lived with his parents. I went ahead and claimed the children this year on the taxes bc last year i had shared custody. He recently found out and said I would be facing jail time. He keeps threatening me and I am unsure what to do. I have not yet recieved my refund but am suppose to within the next week or so. I am wondering what I need to do to rectify the situation. He does not support the children rather his parents. The issue of taxes was reserved for court at another time. Please help!!! We had agreed on things in mediation and now he is saying that it is all his money and I will go to jail and what not. Thanks for your help.
Thank you so much for your reassurance! I was able to e-file and my tax return was accepted! Hooray! I also filled out the form and gave it to him, but I have a feeling he will still try to claim our son for the EIC. Let the fun begin!
Thanks again! 🙂
Thanks a lot! Gosh you are so smart! Thanks for the tip! I’ll look into that!!!
Thanks Sheena,
Good luck with that education fund (which reminds me–I’ve got to pay tuition today.) Just a plug about saving for college–I know people always talk about Section 529 college savings plans for their kids but I’m a big fan of Roth IRAs. 1. You don’t get any tax break, but when you take the money out for college you don’t pay any tax. 2. If your child doesn’t go to college, then you’ve got a retirement nest egg, and 3. Most colleges don’t take into account money that’s in a Roth when they’re computing how much you can pay towards tuition (they use the 529 money though.)
Here’s more information: http://robergtaxsolutions.com/2010/07/saving-for-college/
Oh this is a life saver! Thanks for the information!!!!!!!!!!!!!
In my case, my husband has exactly 50/50 of his son both physically and legally. I’m so glad we have kept up with all our medical receipts, daycare, etc. Last year we didn’t claim our son, because we thought we didn’t have enough proof to claim him even though we did rightfully. Now we have plenty of proof and legal papers of the custody. And I’m positive my husband has a higher AGI than his ex too. SO we meet all the requirements/rules/regulations! I’m so excited. We can now start a huge education fund for our son!!!!!
Kristen,
Don’t send proof with your tax return. They’ll just lose it. Don’t send them anything until they specifically ask for you. (But you might want to get it organized now because you know it’s coming.)
PS: That’s not just advice for Kristen–that’s advice for anybody who has to file a paper return and they know they’re going to have to eventually prove custody. Don’t send your paperwork with your tax return–the people opening those envelopes will just lose it. Instead of making your case go faster it will slow things down. And remember–never send the IRS your only copy of anything, always make a copy first.
Hi Trell,
You’re going to file a paper return, just like I explained in the main part of the blog post. You’re going to have more questions though, because I don’t have enough information from you. Like–when did you divorce or what year is your custody agreement? Does he have a right to claim the exemption? And stuff like that. Some of your questions can be answered here: http://robergtaxsolutions.com/2012/01/eic-help-page/
But the bottom line is, you’re going to file a paper return to claim your kids.
what do i do .. my ex claimed my 2 kids… he just started paying child support (couple months back) but he doesnt have the right too claim them .. custody is in 100% in my way . he haven’t seen them in over year ?? what do i ??
Jan, should I send the proof that she lived with us all last year with my return or should I wait? Kristin
@Katie again,
Sorry, I missed your second note before. I’m not an attorney. Because of my licensing, it’s against the law for me to give legal advice. I have to tell you to talk to your lawyer. I have no idea what would happen in court.
As far as the IRS is concerned–you win claiming the children on your taxes and I wouldn’t be afraid to claim them. Good luck.
Hi Teresa,
You have 50% custody of your son. He’s your son. YOUR SON! It doesn’t matter if your new husband is not the biological father because that’s his step son. STEP SON! Even if you and your current husband get a divorce, you child will forever be his step son.
Your ex–the biological father, did not claim you son (or at least he says he didn’t.) So whoever did claim your son–your son who lives with you for 50% of the year has no right to claim your son.
Let the IRS send them the “Oopies” letter. Let them try to fight.
Here’s a question to ask your child, “When you’re not at Mommy’s house, where do you live and who else lives there?” I’m guessing you know that answer already, you’re the Mom.
If your childs says Gramma lives there too–okay then maybe Gramma claimed him. You share 50/50 physical custody–but the tie goes to that parent–you win. If nobody lives with your ex that could claim your son–well then you win. I’m having a hard time finding an example of where you’d lose (unless of course your ex really did claim him and he’s just lying about it.)
I say fight.
Thank you so much for you advice. It is nice to have confirmation that I’m not misinterpreting the rules set forth by the IRS. I don’t know what will happen with the kids, but that’s another story for a different day.
Hi Lauren,
You need to read about splitting an exemption: http://robergtaxsolutions.com/2011/11/split-exemption-claiming-one-child-on-two-tax-returns-%E2%80%94-the-legal-way/
Your ex can claim the exemption, but you can claim head of household and EIC (if you qualify.) That other post will help you through it. You need to sign a form 8332 for tax year 2011 and give it to your ex. Good luck.
@Tx.tazor,
You asked for my professional opinion–my professional opinion is that I like your mother, she’s right. Oh wait, you meant tax opinion–sorry (but I still like you’re Mother.)
Anyway–you are the child’s custodian. You have a biological link to the child so you pass the relationship test. And you’ve got the time test. There is no tie-breaker here, the exemption is yours.
Now–be prepared for a potential problem. I had to really fight once for a great uncle before because the (insert expletive here) IRS agent did not understand the biological relationship rules. (She didn’t understand the term “descendant”.) But, we did manage to push through to a manager who settled it for us. You are in the right to claim the boys. (I’ve got the audit scars to show for it.)
And although it’s more difficult to prove residency with little kids, I’m sure you’ve got something to show for it. If nothing else, the father has nothing. So whatever you’ve got is going to be better. How’s your photo album? Got pictures of the kids in their room?
And what about that court order? It says the the ex owes child support and has visitation rights–that implies that he is not the custodial parent. Use what you’ve got. The court documents don’t guarantee who gets to claim exemptions–but you’ve got a court document that shows who has the custody of the children. I think you’ve got your evidence.
Hi Shawn,
I don’t have all of the information I need about you, but this post might give you your answer: http://robergtaxsolutions.com/2012/01/court-ordered-exemptions-and-the-irs/
Bottom line, some people can use their court documents to file with the IRS, some people can’t. That other post gives more details.
Hi Samantha,
You’re doing everything right. The reason I sometimes mention a letter form church is for people who don’t have anything else to use as proof. And you’ve lined up your ducks very nicely. If you have something from CPS showing that they put the kids into your care–well that would be perfect. And everything else you have is great too. Sounds to me like those kids are lucky to have an Aunt Samantha.
Oh–and for people who do need a church letter–there is no special form. You just ask your pastor or church representative to write a letter saying that you’re a member and you attend services with the child on a regular basis (or whatever program you do with your child at chuch.) If you’re a church goer, then your church probably knows that you have custody of your child, that’s why I put that down as a recomendation for people who don’t have school or medical records.
@Kristen–
Okay, good luck anyway. (Just to be on the safe side.)
Hi Kristen,
You know the answer–go for it. You’re in the right. The divorce decrees may say she has physical custody of the daughter, but the reality says that she didn’t. You’ve got the school records, health records, because you’re the custodial parent. Don’t be afraid, you’re doing the right thing. (I’m not going to say “good luck” or anything like that because you don’t need it.)
Scott,
You are supposed to claim your child but your ex did instead. She is supposed to sign the 8332 form for you so that you may claim your child. Because of the date on your divorce decree you can’t use that to file your taxes.
First step, nicely ask your ex to sign the 8332 form so that you may prepare your taxes properly. (Nicely.) Gently remind her that it’s in the divorce decree. Remember, with an 8332 you only get the exemption and child tax credit, not head of household or EIC.
If she doesn’t comply, you may need to contact your attorney about her being in violation of the court decree. You won’t get anywhere with the IRS based on your doucments.
Before you do any of that, figure out the dollar value of what you just lost so you know what the fight will be about. Sorry I couldn’t be more help.
Hi Amber,
You know your tax rules about your child. You know it because you’ve had to learn it, am I right? I should hire you to answer questions here for me. You’re absolutely right about the exception for a parent that works at night. Here it is, right on page 28 of IRS Publication 17
Parent works at night. If, due to a parent’s nighttime work schedule, a child lives for a greater number of days but not nights witht he parent who works at night, that parent is treated as the custodial parent. On a school day, the child is treated as living at the primary residence registered with the school.
So, you should go ahead and sign th 8332 and give it to your ex–it’s what’s in your decree. Assume he’s claiming the kids–because I’m sure he neglected to mention anything about your night job and his tax person went–“Oh, he’s got custody because he has more nights,” and you’ll be doing the paper return and stuff. (Try to e-file first, but my guess is he’s already filed.)
But you’re right! And you’ll win. And just remember as you’re arguing–your mantra is, page 28, chapter 3, pub 17. Pub 17 is like the IRS Bible.
Be prepared to get jerked around on this–because you’re dealing with one of those weird, rare rules, but don’t give up. You are in the right.
Hi i have a question i have been divorced from my ex since 2002 in our decree it states the parents are to split years in claiming my son if the other parent does not have income to file their year the other parent may do so i just started claiming my son in 2009 and 2010 and now for my 2011 due to his father who he resides with half the yr does not file his taxes due to no income and i have just started to make my income he was letting his daughter and other family members claim my son the other years. now i filed my 2011 and got a review letter. I know for a fact he did not claim my son so im guessing he let someone else claim him again,(i do not have a good talking relationship with my ex husband ) was i in the right to claim my son or will i have to lose my credit. i have filed as married the last 5 yrs since i remarried in 2007 but my husband is on the top of return does this effect the decision for the irs since he is not my sons father or do i still have the right to claim my son on our return if someone other than his biological father is filing claiming my son?I support my son half the yr as well as his father but my son attends school where his father resides.out of me and my current husband i had the highest income as well i dotn know if that is a factor as well please not sure what i can do in my situation should i fight the claim or let whoever claimed my son claim him??
Hi I really hope you can help me! My ex pays little to no child support for our 2 1/2 yr old born 5/2009 and in court I agreed to let him claim her this year (2011 return) because it was going to cost too much to fight him in court. This will be his first year claiming her as an exemption. Now, when I fill out my return (on TurboTax), when it asks me if I have a child, do I answer “no”? Are answering yes to all of the questions about having my daughter more than half of the year and paying more than half of her support different than making her an “exemption”? She lives with me 90% of the time and I have full custody but like I said her father is claiming her on his 2011 return (per court order) so I don’t want to do something that will get me in trouble! Thank you for your time! It is greatly appreciated!
Niece and 2 great-nephews lived with uncle. Niece doesn’t work and stays home to care for the infants but is working on GED. So-called father of children wants to claim them on his taxes ( uncle claimed niece and the first child for 2010, second child came in 2011). Until midyear 2011 they were on good terms. He did give money last year, sporadically. $40 a week now and again is not sufficient to raise children. His family says he has the right to claim them since he is listed on b/c. It is now apparent that the children are only viewed as $ signs to his family. This guy graciously accepted help from this uncle for phone bills, car repairs, transportation needs, gas money, food, went along on vacations, family outings, etc. etc.; This uncle treated him like family. But eventually showed his true colors to our family. Anyway…
No court order in place last year (court ordered child support and visitation started this year, 2012 and he’s already in the negative due to back childsupport).
Back to children, limited proof of residency given their ages. Insured under someone else (tax preparer stated this was not relevant).
Question: If he decides to pursue further will the IRS’ tie-breaker be in his favor since he’s the “parent” with AGI?
Uncle’s understanding is NCP can legally claim them, but morally shouldn’t.
The uncle will continue to help support them, regardless, because that’s what families do when one needs help; because that’s the right thing to do.
Mother always said, “be not hesitant in helping those in need today, because tomorrow it may be you who needs help”.
Looking forward to your professional opinion.
the thing is, is i dont want to split it with him. all he sees the kids as are dollar signs so he wants to take me to court. but he is also behind on his child support and has been for the past 2 years. he blows off seeing them all the time and i have them all year long and provide all of there needs. im just wondering if he would have a chance in court or would i win?
Katie,
You can split the exemption with your husband. Here’s info on that: http://robergtaxsolutions.com/2011/11/split-exemption-claiming-one-child-on-two-tax-returns-%E2%80%94-the-legal-way/