A wwyd in regards to tax filing

[Kwan*Yin]

I just found out my ex claimed our baby the last two years on his taxes. He has zero custody, zero visitation, does not pay child support, and isn't even on the birth certificate. I haven't claimed the baby because I haven't had any income to file taxes with so that isn't the issues. Just curious, wwyd? I know that if I file a claim with the IRS he would lose his earned income credit for 10 years. I honestly am not looking to harm him. But the fact that he is profiting off of our baby that he never visits and refuses to pay me support for is hard to swallow.Thanks for the advice.

[maeby]

even though you haven't had income, i think you could still get some money back possibly? i have a friend who makes very little and thought she shouldn't file but i helped her and she claimed her two sons and got back 7k+. and  if you did file that would trigger an audit for your ex and they of course would find that he has absolutely no right to be claiming your baby. otherwise if you do ever have to file you will end up in the same boat - only you will get audited as well. sounds like right now is a good time as there is nothing to audit!

[maeby]

i also wonder if there might be a way to change your baby's ssn?

[maeby]

i thought of one more thing! could your parents claim you and your child as a dependent? or anyone else? i'm pretty sure its allowed as long as they provided half of whatever was needed to support you. 

[RollerCoasterMama]

Can he claim if he's not legally attached to the baby at all?  I know some very general things about claiming a child but not about that.  Without established paternity, it seems odd that he could file.  Although since you didn't file, no red flags would come up.  He must know your baby's SSN to be able to file? 

This would probably be worth a quick consult with a tax attorney.  In general terms, if he's got established paternity, and no court order to say who gets the deduction, it's usually whoever files it first gets it and the 2nd person gets red flagged for an audit.  If you had a court order saying Parent A gets the deduction every year (or odd years, or just one of two kids, etc) and Parent B took a child deduction they weren't entitled to, than Parent A could file the claim showing that it was their deduction and Parent B gets in trouble. 

But...I'd guess that with no name on the birth certificate, no custody and no child support, there's no paternity established and no document saying who gets the court order. 

Maybe someone else here knows more what happens in this situation.  Do you talk to him at all?  If so, it might be worth a conversation about the fact that the past two tax years are water under the bridge, but going forward, you intend to file and claim the baby and if the IRS sees two people claiing the same child, they're going to ask questions, and it's going to play out in your favor.  (I think!  I still say a visit to a tax attorney is the safest bet!  My knowledge of tax law is getting more out of date every day!)

Good luck!

[orangecanoe]

If you live with parents, then they could claim the baby so long as you didn't. f he is filing erroneously and you should also happen to file and claim, you would not be at fault if you provide more than 50% of the costs for the child. I'm only saying that because if it were the case that he only had sporadic visits, but paid more than 50% of the costs then he could then claim the deduction. I'm not sure if you're sharing all of the details, but it doesn't seem like there's anything to be done.

[One_Girl]

If you have contact with him you could just tell him not to do it again because if he does you will report him to the IRS since he has no legal attachment to your child.  Tax fraud is a serious crime and he could face some serious penalties for claiming a child he doesn't technically have in the eyes of the law.  If not I would suggest reporting him to the IRS.  Just tell them he isn't on the birth certificate, provides no support, and you don't want this happening in the future because you are planning on working.

[secondimpression]

Originally Posted by RollerCoasterMama 

Can he claim if he's not legally attached to the baby at all?  I know some very general things about claiming a child but not about that.  Without established paternity, it seems odd that he could file.  Although since you didn't file, no red flags would come up.  He must know your baby's SSN to be able to file? 

This would probably be worth a quick consult with a tax attorney.  In general terms, if he's got established paternity, and no court order to say who gets the deduction, it's usually whoever files it first gets it and the 2nd person gets red flagged for an audit.  If you had a court order saying Parent A gets the deduction every year (or odd years, or just one of two kids, etc) and Parent B took a child deduction they weren't entitled to, than Parent A could file the claim showing that it was their deduction and Parent B gets in trouble. 

But...I'd guess that with no name on the birth certificate, no custody and no child support, there's no paternity established and no document saying who gets the court order. 

Maybe someone else here knows more what happens in this situation.  Do you talk to him at all?  If so, it might be worth a conversation about the fact that the past two tax years are water under the bridge, but going forward, you intend to file and claim the baby and if the IRS sees two people claiing the same child, they're going to ask questions, and it's going to play out in your favor.  (I think!  I still say a visit to a tax attorney is the safest bet!  My knowledge of tax law is getting more out of date every day!)

Good luck!

This is good!

Also, having been through an audit before, I can assure that in most situations where you clearly abided by the tax laws it just takes a simple letter to the IRS explaining what you did and why. It doesn't matter what any custody or divorce agreement states, the tax law is what it is: and that is that whoever provided more than 50% of the child's support AND that child resides with more than 50% of nights claims them as a dependent. Your milage may vary though, but that's the rule the IRS will default to. Not to say that if your custody/divorce agreement says otherwise, the person who lost out on the dependent can't take you to court to sue for the difference. It can also take a few years for the IRS to do an audit (mine was 2 years after the tax year with the issue) and they often won't do a full-blown audit in something as simple as a mixed up dependent. The IRS really isn't this big scary monster people make them out to be, I found them extremely helpful and understanding when I went through my audit, and it worked out in my favor

[lilyka]

Do you have a child support order and custody agreement etc?  Who claims the children is included in all that for me.  Either one of can claim them but I have dibs.  If he wants to claim them he can but he has seven days from when I do my taxes to pay me whatever I lose by not claiming them.  

This is definitely something to talk to an accountant/tax attorney about.  Its not even about weather or not he has a right to get money on account of the baby but someone is supporting that baby and the deductions are to help them out.  

And you might also want to talk to someone about filing taxes.  I only made $14,000 last year and paid in less than $800 in income tax and got back $8000.  And I did not even claim all my children.  I am not sure how that works but hey, you should talk to an accountant.  You never know.

[Goodmom2008]

Originally Posted by orangecanoe 

If you live with parents, then they could claim the baby so long as you didn't. f he is filing erroneously and you should also happen to file and claim, you would not be at fault if you provide more than 50% of the costs for the child. I'm only saying that because if it were the case that he only had sporadic visits, but paid more than 50% of the costs then he could then claim the deduction. I'm not sure if you're sharing all of the details, but it doesn't seem like there's anything to be done.

Here is the order, per the IRS, of who gets the deduction for a minor child:

#1-the parent that the child lives with the majority of the year.  The IRS only counts overnights.  Who provided more financial support is irrelevant.

#2-when the parenting time is equal (meaning both parents have the same amount of overnights, only possible in a leap year), then it's the parent who provides more than 50% of the financial support.

The earned income credit can only be claimed by someone who is working.  The person claiming the earned income credit can only claim the child for this IF the child lives with them the majority of the year.  In fact, in the years that the NCP gets the deductions for the child (this includes the child tax credit as that follows the exemption), the CP can still claim the child for earned income credit purposes and the childcare costs related to employment. 

To the original poster, if there is a court order for child support, you need to file with the state to have it collected through them.  This way they can intercept ANY refund he gets from the IRS.  I would also report him to the IRS for illegally claiming the child.  That he won't qualify for the EIC for 10 years is his problem and his fault for committing fraud.  And I would let your parents claim your child.  Give them a tax benefit for helping you and your child.  And when you do start working, you don't want any issues with your tax return.  Although in the end you would prevail, it is a headache to have to deal with the IRS. 

[Kwan*Yin]

I don't live with my parents, in fact they aren't alive. There is no child support order or custody order. He isn't involved in her life at all, no visits and no support period. He has threatened in the past to go for joint custody if I ever filed child support and personally I prefer not to have him  involved at all in lieu of a hundred bucks a month if I'm lucky. I didn't think of him having to have her social. I wonder how he did get that. We have very little contact with each other. I did contact him about this and he offered me a portion of the tax return and I told him he was illegally claiming her and I would not get involved. After two years of no child support I am not about to take a portion of an illegally claimed tax credit from him. I will look into filing with what income I do have. I actually have a friend who is a tax attorney so I will get in touch with him, Thanks for the advice~

[orangecanoe]

Goodmom--interesting. I could have sworn what I found said the opposite, that it's simply who provides more support that is eligible to claim the child. I think I confused that with whether or not you could file as head of household. Here is a link to the IRS pub that has lots of good info and details.

[Goodmom2008]

I am an accountant and while I don't do taxes, I do know what the IRS says.  Here is what the IRS states:

New Rules for Children of Divorced or Separated Parents

Revocation of release of claim to an exemption. For tax years beginning after July 2, 2008 (the 2009 calendar year for most taxpayers), new rules apply to allow the custodial parent to revoke a release of claim to exemption that was previously released to the noncustodial parent on Form 8332, Release/Revocation of Release of Claim to Exemption for Child by Custodial Parent, or similar statement. The revocation is effective no earlier than the tax year following the year in which the custodial parent provides, or makes reasonable efforts to provide, the noncustodial parent with written notice of the revocation. Therefore, if the custodial parent provides notice of revocation to the noncustodial parent in 2009, the earliest tax year the revocation can be effective is the tax year beginning in 2010. You can use Part III of Form 8332 for this purpose. You must attach a copy of the revocation to your return for each tax year you claim the child as a dependent as a result of the revocation. Post-1984 and pre-2009 divorce decree or separation agreement.   If the divorce decree or separation agreement went into effect after 1984 and before 2009, the noncustodial parent may be able to attach certain pages from the decree or agreement instead of Form 8332. The decree or agreement must state all three of the following. The noncustodial parent can claim the child as a dependent without regard to any condition, such as payment of support. The custodial parent will not claim the child as a dependent for the year. The years for which the noncustodial parent, rather than the custodial parent, can claim the child as a dependent.      The noncustodial parent must attach all of the following pages of the decree or agreement to his or her tax return. The cover page (write the other parent's social security number on this page). The pages that include all of the information identified in items (1) through (3) above. The signature page with the other parent's signature and the date of the agreement. Post-2008 divorce decree or separation agreement.    Beginning with 2009 tax returns, the noncustodial parent can no longer attach pages from the decree or agreement instead of Form 8332 if the decree or agreement went into effect after 2008. The noncustodial parent will have to attach Form 8332 or similar statement signed by the custodial parent and whose only purpose is to release a claim to exemption. The noncustodial parent must attach the required information even if it was filed with a return in an earlier year

[Goodmom2008]

Originally Posted by orangecanoe 

Goodmom--interesting. I could have sworn what I found said the opposite, that it's simply who provides more support that is eligible to claim the child. I think I confused that with whether or not you could file as head of household. Here is a link to the IRS pub that has lots of good info and details.

The Head of Household status has the same requirements as being able to claim the exemptions with the exception that the CP cannot sign over the HOH status to the NCP.   But the CP can claim HOH even if the NCP claims all children. 

[Kwan*Yin]

Interesting. Well either way he didn't get that form from me and I'm pretty sure he doesn't have my social security number. I'm feeling disturbed he is claiming the child that I support 100%. So he is getting maybe $4-6000 in a credit that he doesn't deserve. Ugh. My baby could totally use that money!

[maeby]

goodmom - so i can allow ex to claim ds next year and still claim hoh? also, can we split something like he take EIC (since I now make too much to qualify) and i claim child care and/or child tax credit? or is it all or nothing?

[Goodmom2008]

Originally Posted by kristinekristine 

goodmom - so i can allow ex to claim ds next year and still claim hoh? also, can we split something like he take EIC (since I now make too much to qualify) and i claim child care and/or child tax credit? or is it all or nothing?

The HOH of household status goes to the parent who has the child over 50% of the time, it doesn't matter if the NCP gets the exemption or not. 

The child tax credit follows the exemption, which means you only get that if you claim the child on your taxes, it can't be split. 

What you do get, even if the ncp claims the child, is the childcare costs related to work and the EIC.  Your ex cannot claim the child for the EIC unless he has your child for more than 50% of the year. 

[maeby]

Originally Posted by Goodmom2008 

The HOH of household status goes to the parent who has the child over 50% of the time, it doesn't matter if the NCP gets the exemption or not. 

The child tax credit follows the exemption, which means you only get that if you claim the child on your taxes, it can't be split. 

What you do get, even if the ncp claims the child, is the childcare costs related to work and the EIC.  Your ex cannot claim the child for the EIC unless he has your child for more than 50% of the year. 

That's great to hear because ex was really upset that I wouldn't let him claim DS this year and told him probably not for next year too. But it sounds like I could let him claim him next year without totally screwing myself over. The problem is that my exemptions are at a 5 and I can not lower it because I need every penny I am getting out of my checks right now to afford life. Would it be fair to say he can claim DS if 1. he is up to date on his taxes (he hasn't filed for 3 years) and does not owe them back taxes 2. he pays to have his and my taxes done professionally and 3. pays whatever i owe, if i owe? so basically am i likely to owe if i don't change my exemptions and do not claim DS next year?  i got back over 1000 this year, i still qualified for EIC but just barely and had to up my 401k and scrimp the last couple months of the year to do it.

[maeby]

errr sorry to derail the thread!

[Goodmom2008]

I would defnitely tie it into him being current on all of his financial obligations regarding your kids (and if you don't have a child support order and he isn't paying, then I would definitely say no).  I would also only let him if he derives a legal tax benefit from it, he doesn't get the EIC and if he tells you that he can, tell him he's full of sh****(use nicer words).   Plus another factor is your court order, courts typically alternate the exemption when there is only one child.

If he is paying child support, you can do taxes with you getting the exemption and with you not getting the exemption (doing your own taxes is not that difficult) and have him do the same.  The one thing that he has to understand is that he can't get EIC even if he claims the child (this would be if he qualified based on his income), so you really need to go over his return with a fine tooth comb to make sure he isn't.  And see who gets a bigger benefit.  If he ends up with more money back, tell him he can have the exemption if he pays you what you would have gotten (and I would get this in writing and the money upfront). He also doesn't get HOH status and since there is only one kid, it will set off a red flag with the IRS if both of you file HOH on the same child (you do have to list the qualifying child on your return even if you aren't taking the exemption).