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

Posted on: 01/6/12 152 Comments
A boyfriend cannot claim your child for EIC.

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

 

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

You may also be interested in these posts:

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

Eight Basic Rules to Qualify for the Earned Income Tax Credit

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

 

Answers to EIC Questions

 

How to find free tax preparers

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How to find your local IRS office

 

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

  1. Hi Klynn,
    If he’s not the father, then he’s not the father. If you two got married, it would solve that problem for the future, but not for past tax returns. If you have any income, then you should claim your daughter, not your boyfriend. If you have no income, then he may be able to claim the exemption, but not EIC.

  2. Hi Cindy,
    it’s difficult to claim a child when a parent is also claiming the child. Here’s the thing, the mother could claim the child for head of household and EIC, and still allow the father to claim the exemption for the child tax credit. You, as the grandmother, don’t have the same privilege. No, as I understand it, the father only claims one child – so you still get to claim EIC and head of household on the other child. BUT – and this is important, if your daughter has any income, then she should be the one to claim the children.
    What your daughter should do is issue her ex a form 8332 releasing the exemption for the child that the dad is claiming. Often, when people go to places like H&R Block, and they hand over the 8332, that’s their clue that the guy shouldn’t be claiming EIC. (He’ll get wise to it soon enough, but that’s what the 8332 basically does.)
    But really, the only way to get the ex to quit claiming EIC is for your daughter to do it.

  3. Hi Melissa,
    I don’t give a rat’s patootie about your ex’s girlfriend, but I do care about you. If you claim those boys, but they didn’t live with you, you could get yourself into big trouble. His girlfriend should not claim those boys – I agree. But, if you claim them, and they didn’t live with you, you’re inviting an audit that you know you will lose before the audit starts. Why do that?
    Now, if you want to report her for tax fraud – read this: How to Report Tax Fraud
    But, before you do something like that, you need to think hard about it. Is causing trouble for the ex’s girlfriend going to harm your children? You see, personally for me – I’d be really ticked off if my ex’s girlfriend were claiming my kids on her taxes. I mean that’s pretty low. But – if that money is being used to put food on the table and a roof over their heads. If she were treating them with love and respect. Hmmm – yeah, what she’s doing is wrong, but I think I’d look the other way for the good of my children.
    On the other had, if she were just using my kids to get money and buy stuff for herself while my kids went without – well I’d be filing a fraud complaint.

    One thing about the fraud filing – there’s not a lot of satisfaction. The IRS won’t tell you what happens. You file the paperwork and never hear back. They do their thing – but because of all the privacy rules, they tell you nothing.

  4. The father of my son and I have a mutual agreement to claim our son every other year. This is his yr and he ended up letting his girlfriend/fiance claim our son and she has now been audited. Because we do not have any court orders of our schedule with our son he is trying to have me write a letter stating our schedule and that we alternate claiming our son. I dont think I should be involved since it was their decision to do this. I was not sent a letter from the irs requesting information. So is this something I need to be involved in? Wouldn’t a letter from me stating we have the mutual agreement on alternate years be good enough? What he does on his yr is up to him correct?

  5. My boyfriend and I have done our taxes jointly, for 2 years, next year I will start doing them by myself. I know Im in the wrong for doing taxes with someone I don’t have kids with and that im not married to, Im just wondering what are the consequences, Do I just pay whatever I recieved back? or is there jail time, etc.

  6. Hello Jan, I have read through alot of the comments here and I am disappointed bc my situation relates to a few here. My fiance and I have been together for 7 years and we have a daughter (not his biological daughter) He has raised and taken care of her since she was 3 months old, she is now 7! He is her father in every other way in life but when it comes to the IRS. He is the only father she knows and has because the biological father is no where around. I think that if we would be able to prove that he has taken care of her, not just this year but for the past 7 years then he should be entitled to the credits when claiming her! Especially with my permission! Some people have told us to take our chances and send some info in for the review we are under. They say the IRS is sometimes more forgiving and may grant or realease the funds. What do you think? I think my best best if not that is to just amend the return.

  7. I am the grandmother of a 5 year old my daughter and her children live with me 12 months out of the year the kids visit their father every other weekend and he pays 340 a month in child support he claims one of the children as a dependent(its in the divorce papers that he can) but he also claims EIC for him and probably head of household so do I have a right to claim EIC for this child since he lives with me and my daughter full time and if he is filing EIC is he breaking the law and how can I stop this

  8. My boys lived with their dad and his girlfriend last year. I believe his girlfriend claimed our boys and he didn’t. Could she get into trouble if I decided to claim the boys since their father did not and aloud the girlfriend to claim the boys? We don’t have any custody agreements and have never been married.

  9. Hi Faith,
    as you are not yet married to your fiance, he cannot claim EIC on your daughter. If you and your daughter have lived with him for the entire 12 months of 2017, then he may claim you as dependents, but that would only allow him to claim exemptions for you and for her. He would not be entitled to EIC or the child tax credit. He would also not be entitled to the head of household filing status.

  10. I am divorced live in Ohio my ex husband lost his parental rights and there is also a protective order so with that being said can my finance claim my daughter and me and get EIC for her

  11. Hi Victoria,
    in your case, for 2017, if your fiance provides more than half of the support for your daughter, then he could probably claim the exemption for her. He could not claim EIC and he could not claim the child tax credit. He may also be able to claim you as well. The IRS has a good “interview”? I don’t think that’s the right word, but that’s what they call it. Anyway, click on the link and go through the questions to make sure. But I’m thinking that in your case it’s probably going to be okay. Who Can I Claim as a Dependent?

  12. Hi i have a fiance that ive been with for almost two years. Me and my daughter (which is not his biological dauggter) collect social security survivors benifits from my late husband and my daughters real father. He passed away a few years ago. He has been supporting her from day one. Can he still claim my daughter on his tax return?

  13. Hi Amanda,
    Probably not. You did work from January until July so I’m guessing that you made more than $4,050 so no, he would not be able to claim you. And, if he is not the father of your daughter, I’m guessing that you read the article and you know he can’t claim her either.

  14. I haven’t work since july of 2017 and wont be returning to work until 2020 can he claim both me and my daughter on his taxes?

  15. Hi Lizzy,
    So you don’t need to worry about the biological father. The ex-boyfriend is out of the picture, so I’m thinking it would be okay for your current boyfriend to claim the exemption for her as a “qualifying relative”. If you are doing the taxes yourself, when the software asks what the relationship is, you say, “none.” That should keep you out of EIC and child tax credit trouble. If you and your boyfriend get married, then he can claim EIC and child tax credit also.

  16. Hi
    Her biological father passed away last year. But he didn’t signed her birth certificate he just found out about her last year. She does have my ex boyfriend last name but he’s not the biological father, he was their when she was born, but when she was 1 yr old he went to jail and he just got out this year. Ibdont think he will claim her, his giving up his rights..

  17. Hi Lizzy,
    Here’s the thing, your boyfriend may claim your daughter as a dependent – but not as a child. Weird, right? What’s the difference? Well, if he can claim a child, there is a child tax credit which is worth $1000. There is also the possibility of the Earned Income Tax credit – he can’t get that either.

    But, if you are not working, and have no income, then not only can he claim your daughter, he can also claim you as well.

    But, there’s one thing that might throw a chink in things. Where is the girl’s birth father? Is there any chance he’ll try to claim your daughter? Does he have any right to do so? If the birth father has any rights for claiming, then your boyfriend will lose out.

  18. Hi
    I’ve been living with my boyfriend for 11 yrs. He raised my daughter since she was 2 yrs. I always claim my daughter on my income tax for the passed 11yrs. I stop working almost 2 yrs ago. My boyfriend wanted to know if he can claim me and my daughter this year’s income tax. We do have joint bank account and he is in my daughters school papers as her father..

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    Here’s what you can do.

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

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

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