Question about disputed dependent.

[Gardening Grandma]

My son is divorced. He has primary custody of two kids. They visit their mother every other weekend (4 days/mo). The parental plan states that she may deduct one child unless she is behind on the child support. As of Dec 31, she was behind (about $1K). She has sent him an email stating that she has already filed (which may or may not be true) and that she has already claimed one child as a dependent. I strongly suspect that she's claiming "single head of household".

What should he do? Should he file and claim both? If he does, what should he expect from the IRS? Would it be worthwhile to take her to court (for violating the parental plan)?

Advice?

[Taxman10]

this is an interesting problem, I hope others with more experience in this area chime in also.

From what I understand (and I could be completely wrong) the IRS looks at it as a first come, first serve basis.

If he files and claims the kid, he will most certainly get a notice and open up a can of worms.

If he does file, then he'll have to prove that he provided more than 50% of the support. I'm not sure how the parenting plan will play into it?

good luck!

[Gardening Grandma]

Thank you taxman,
Since both kids live with him well over half the year, will he still have to prove that he supports them more than 50%? And can he figure each kid costs 1/3 of the house payment, utilities, food bills, etc?

[larousse]

The IRS has "tiebreaker rules" that come into play here. It should be pretty easy to prove that, absent an agreement, he would be entitled to claim both. There is an agreement in place and that agreement supports him still claiming both but what has to be proven, beyond the 50% support (and providing their home is substantial, but probably not 1/3 of the house payment), is that the ex is, in fact, behind on payments. If he can prove that, all should be well, but if the ex has already filed, he can expect an inquiry from the IRS.

He shouldn't have to actually take the ex to court to resolve this with the IRS.

[Sharon]

My sister encountered this with her ex. There was a change of custody in October of one year. The ex claimed the kids even though he had only had custody for 2 1/2 months. My sister also claimed the kids. The IRS sent her a letter that the children had been claimed on another return. She sent them all relevent paperwork. The IRS sent her a letter back saying she was fine and that was the end of that.

[nancy65]

If she has already filed and claimed one child, he will NOT be able to claim the same child on an electronically filed return. If he wants to claim the child, he will have to paper file, and be prepared for a long fight. However, IMO he would win in the end.

There are new rules this year for when a non-custodial parent is allowed to take the dependency exemption, and it depends on when the divorce decreee went into effect. Without going into all the details, in part it depends on whether it was before or after 1/1/09.

[Gardening Grandma]

Thank you all.
FWIW, the divorce was final 12/09.
He can prove that she is behind on the cs.
It sounds like he should try filing electronically and claim both? If it goes through OK, then he will have filed first and the burden of proof would be on her? If his return is rejected with an error code, that means that she's already claimed the disputed dependent and he would need to file a paper return, claiming both, and be ready to prove to the IRS that he's the one legitimately entitled to the deduction?
Have I got this right?

[Taxman10]

Jan 25, 2011 11:02:17 GMT -5 Gardening Grandma said:

Thank you all.
FWIW, the divorce was final 12/09.
He can prove that she is behind on the cs.
It sounds like he should try filing electronically and claim both? If it goes through OK, then he will have filed first and the burden of proof would be on her? If his return is rejected with an error code, that means that she's already claimed the disputed dependent and he would need to file a paper return, claiming both, and be ready to prove to the IRS that he's the one legitimately entitled to the deduction?
Have I got this right?

sounds about right. thanks Nancy for reminding me about the e-filing issue. I remember hearing that a CPE

[bean29]

My BIL had to submit documentation every year for several years to get his dependent deductions.

I knew about the rule from my SIL. She got audited one year, proved they were entitled to the deduction and then had it happen all over again the next year. She called and asked if they had already audited the prior year did she need to prove it all over again. They said yes, and made her aware of the first one to claim rule.

I am pretty sure that she then started to claim the kids and send the court form showing they were entitled to the deduction and something showing the support documentation. Her kids are now in their 20's so it has been several years since it was an issue for them.

My understanding was it was not a full blown audit it was specifically in regard to their right to the dependent exemption.

Good luck to your son.

[nancy65]

Jan 25, 2011 9:44:58 GMT -5 Gardening Grandma said:

My son is divorced. He has primary custody of two kids. They visit their mother every other weekend (4 days/mo). The parental plan states that she may deduct one child unless she is behind on the child support. As of Dec 31, she was behind (about $1K). She has sent him an email stating that she has already filed (which may or may not be true) and that she has already claimed one child as a dependent. I strongly suspect that she's claiming "single head of household";.What should he do? Should he file and claim both? If he does, what should he expect from the IRS? Would it be worthwhile to take her to court (for violating the parental plan)?

Advice?

Unless she lied and said the child lived with her, she could not file as Head of Household

Also unless she lied and said that she was the custodial parent (i.e. that the child lived with her) she would need to have a Form 8332--signed by your son--attached to her return releasing his claim to the exemption. This was new last year and applies to 2009 and later decrees/agreements.

Unless he just doesn't want the hassle, IMO he should file his return claiming both of the children. He has the right to them; she doesn't.

[Gardening Grandma]

Unless she lied and said the child lived with her, she could not file as Head of Household. Also unless she lied and said that she was the custodial parent (i.e. that the child lived with her) she would need to have a Form 8332--signed by your son--attached to her return releasing his claim to the exemption


She has a history of being truthfully challenged. He's going to file and claim both. He's also going to include a short statement and a copy of the court document designating him as the custodial parent.

[TheOtherMe]

Jan 25, 2011 15:49:47 GMT -5 Gardening Grandma said:

She has a history of being truthfully challenged. He's going to file and claim both.

I like the words "truthfully challenged" instead of liar.

[commentator]

FWIW, the Form 8332 has been around longer than just since 2009. Specific rules have changed but the form has been around many years.

[taxref]

I would add that, as far as claiming the children as dependents, the IRS doesn't care what the divorce decree says. The tax code trumps any divorce decree for tax purposes. Consequently, he doesn't have to worry about proving the ex-spouse didn't pay child support, or any of the other issues raised in the divorce decree.

All he has to do is prove that he is the custodial parent. In that case she cannot claim either child without a signed 8332.

[Gardening Grandma]

All he has to do is prove that he is the custodial parent.

Well that' easy enough. The parenting plan spells it out. He's wondering if he should email her and strongly suggest that she file an amended return correcting her "mistake".... Or just let the chips fall where they may?

[Deleted]

Let them fall

[ShoreEA]

All he has to do is prove that he is the custodial parent.

Well that' easy enough. The parenting plan spells it out.

Please re-read what taxref said. That divorce decree/"parenting plan" is binding on the the two ex-spouses and on the State in which it was executed. It is not binding on the IRS. If a noncustodial parent wants to claim a dependency exemption, they MUST have a signed 8332, or they will lose any audit. No disrespect to nancy65, but this applies to all taxpayers, not just those who were divorced after a certain date.

[TheOtherMe]

Jan 26, 2011 19:01:25 GMT -5 taxref said:

I would add that, as far as claiming the children as dependents, the IRS doesn't care what the divorce decree says. The tax code trumps any divorce decree for tax purposes. Consequently, he doesn't have to worry about proving the ex-spouse didn't pay child support, or any of the other issues raised in the divorce decree.

All he has to do is prove that he is the custodial parent. In that case she cannot claim either child without a signed 8332.

I worked for a firm once who did Block type returns as that is where the owner started and I can still hearing him explaining that to people.

[nancy65]

Jan 26, 2011 22:23:57 GMT -5 ShoreEA said:

All he has to do is prove that he is the custodial parent.

Well that' easy enough. The parenting plan spells it out.

Please re-read what taxref said. That divorce decree/"parenting plan" is binding on the the two ex-spouses and on the State in which it was executed. It is not binding on the IRS. If a noncustodial parent wants to claim a dependency exemption, they MUST have a signed 8332, or they will lose any audit. No disrespect to nancy65, but this applies to all taxpayers, not just those who were divorced after a certain date.

I realize that Pub 17 is not the final authority, but this quote from the 2008 Pub 17 is what I was referring to:

Beginning with 2009 tax returns, the
noncustodial parent will no longer be
able to attach pages from the decree or
agreement instead of Form 8332 if the decree or
agreement was made after 2008. The noncus-
todial parent will have to attach Form 8332 or a
similar statement signed by the custodial parent
and whose only purpose is to release a claim to
exemption.

[Gardening Grandma]

All he has to do is prove that he is the custodial parent.

Well that' easy enough. The parenting plan spells it out.

Please re-read what taxref said. That divorce decree/"parenting plan" is binding on the the two ex-spouses and on the State in which it was executed. It is not binding on the IRS. If a noncustodial parent wants to claim a dependency exemption, they MUST have a signed 8332, or they will lose any audit. No disrespect to nancy65, but this applies to all taxpayers, not just those who were divorced after a certain date.

To clarify - my reference to the parenting plan/ divorce decree is that it designates the father as the custodial parent. It spells out clearly that she is entitled to visitation 4 days/mo, but that they live with HIM.

[commentator]

If the court order specifically says who the custodial parent is, then that person is the custodial parent for tax purposes. If the court order is silent (not likely) or awards joint custody, then the relative number of days of custody of the two parents decides the custodial parent for tax purposes.

[ilea]

Nancy is correct. For divorces finalized before 2009, the IRS accepts certain pages of the divorce decree in lieu of the 8332. For divorces finalized after 2008, the 8332 is required.

[piratesparrot]

I had a similar problem when I divorced. I had total custody. I was entitled to take the deduction. My ex decided to take the deduction after I already filed without my knowledge. I got a letter from the IRS stating that I had to prove to them that I was entitled to the deduction by submitting the divorce decree, proof that I was sole support such as Dr. bills, daycare receipts etc. They won't tell you who claimed your child (but that is obvious). They then determine who is entitled and if you are not entitled you will not get the refund and if you already received it you will have to pay it back. I never heard from my ex on it but I am betting he wasn't very happy when the IRS came after him. He was supposed to be paying a lousy $50 per week Child support and he never even paid that. In the past 18 years he paid a total of about $500 and that was when his wages were garnished. He hasn't even seen or spoke with his daughter in over10 years. But when it comes to money he wants his cut.