L.M.
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New York
on
I would contact the IRS and ask them this question.
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Ok, so for any of you out there who may have gone through custody/dependency disputes, or know someone who has, here's the situation
The past 2 years Mom has claimed my boyfriends son (without discussing it first with dad) on her taxes and he let it go. Since their son was born he has had him over 50% of the time, according to the IRS that means he has the right to claim his son. This year, we called the IRS to double check. They ran through the numbers, or whatever it was they did to figure out who could claim the child and said that he could claim him being that his son lived with him more than half of the time over the past year. So he tells mom that he claimed him, and spoke to the IRS and she said she already filed but would re-file since it was his right to claim him.
So we get the tax return, and he sent her a message asking if she re-filed yet and she said
"I got my money before I agreed to re-file and already spent it".
Now we know if he spends it too, which we really do need the money, that he will be audited by the IRS down the line. His son is 3 and does not go to school because I homeschool him, so there are no school records. We can get doctor records that state that his address is here, but what else could he do to prove that he lived here?
It isnt in writing anywhere in their custody agreement that either of them has more right to file, or that it would or would not be split up, but everyone i've ever known that has joint custody has gone every other year to claim their children. I don't think it's right that she gets the return 3 years in a row when the majority of the past year (actually 3 years) not only was he living with his father, but his father was being made to pay child support (I don't know why) and pays for his insurance as well as all his doctor visits, and for all the classes we have enrolled him in (things at the community center in town like art class, gymnastics, playgroup).
Any advice would be so greatly appreciated since an audit is inevitable and he wants to make sure he can prove it to the IRS in court that he had his son more than half of the time. She is good at manipulating the court, she has done it a few times already regarding their custody arrangement (you may have seen some earlier posts of mine that this has been an ongoing struggle). So we need solid 100% proof that she can't make and win claims against.
**EDIT**
Originally they it was joint custody, yet named her primary although dad had him sunday through thursday, 4 overnights. In December, she wanted to move out of state and when he fought for primary they told him it didn't exist (which I still don't get) and the hours changed at that point to be 50/50. So this coming year will be split in half, but the past 3 years he had his son almost 60% of the time. We ran the return before filing, both with and without claiming him. It is a difference of almost $5,000. There has been a huge on-going custody dispute, as I've stated. He has already claimed him, already received the money. She claims to have spent hers, but like i said she did agree to re-file, and an IRS agent told us that it is his legal right this year, and not hers to claim him. He is already planning to fight this, so I really just want to know what kind of documentation I need. He has, like i said, Dr records that put him living at our address. His insurance is under his dad, at our address. I also have receipts from the past year for food and clothing. Just want to know what else he might need.
she is not the main custodian. it is joint. the court told them that there is NO primary custodian in their case. just because she is the mother it does not automatically make it her right. he is the main caretaker when it comes down to it. anyone who wants to respond that its her right as the mother, please don't respond. it is as much his right as it is hers, if not more-so his. As far as it being a who filed first thing, she didn't discuss this at all with him. She refused to give him their son's social security number for weeks. I'm not sure why he didn't have it in the first place, but she won't let him have the birth certificate or the social security card even though he's here more than he is there and will be going to school here with us. I'm assuming she only gave it to him after she filed. She refused to give it to him last year too so that's why he ended up not filing. When the IRS agent told us this year that it was his right and he should file, thats when she gave him the number and said she would refile. Now, weeks later, after he received his return she says she already spent the money.
I'm going to get all the documents together and hope for the best if they audit.
We had thought he had gotten the money because a family member of mine is the one who did the return. Turns out it was rejected (electronically) because of her already claiming him. As of today, she agreed to re-file after my bf told her that he would give her the money that she had originally received for their son. Hopefully she will actually do this. We contacted the IRS and they said to file again manually and that he would get the money and then it would be audited after the year is over. We also told them what he has as proof of his son's residency here and they said it was more than sufficient and that he has nothing to worry about since it is him that should be receiving the return this year and not her. Over the year i saved every receipt for clothing, food, school supplies, doctor visits, dental visits and we can obtain records from the doctor and dentist as well as the activities we have him enrolled in..just in case she won't refile. Even though he has to give her a bunch of money to get her to refile, it works out for him anyway because otherwise he wouldn't be getting hardly anything in his return. I have been telling him to get a judge to put in writing that they switch every other year, hopefully they will do it now. thanks for the advice and support
I would contact the IRS and ask them this question.
Question - did either of you file electronically?? I'm just wondering how a child's SSN went thru on 2 separate returns - that just doesn't happen when e-filing! I'm seriously wondering if you have a correct SSN on the child! And if you want a birth certificate - just go to your state's vital statistics dept (that one is easy!).
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I agree with what the other posters said about getting a court order spelling out who claims the child each year.
As far as documentation- gather the receipts for everything- food, clothes, co pays, classes, homeschool supplies, everything that your boyfriend has paid for him for the year. Also, gather anything that has the child's name and address on it, esp. things with dates- such as the registration for the classes you put him in (usually that stuff has the child's name and address on it and the date you registered and the dates of the class) or records from the doctor's office (that have dates you all took him for check ups or whatever and address on it). Anything that proves he lived with your boyfriend for more than 50% of the year that has dates and his address on it.
Also, the discussion your boyfriend and his ex when she said she would re-file- was that verbal or did they exchange messages (email, facebook, etc)? If it was messages- print them out and save them.
Good luck.
If the mother has agreed to re-file, there should be no problem. From here out they should take turns every other year. There should be no need to fight if they get everything in writing.
Blessings....
Since nothing is in writing regarding who can claim him, I believe it really is a "who filed first issue". Going forward, I suggest that get spelled out.
With my son, we had joint custody but I was primary and the order was for him to visit his dad every other weekend, a couple weeks in the summer, etc. Of course, ordered doesn't make it so. I always claimed him (no question).
You will have to go back to court and have a judge decree what the guideline is about taxes. I think one parent should always have 100% custody so these type of situations don't happen. The custodial parent always has the right to claim the child.
Since this is joint custody you'll have to have a judge write the decree for next year. Do it soon so it will all be filed and both can plan on what they have held out for taxes on their paychecks this year.
I think it's a lost cause for this year and not worth the expense of fighting an audit in court. Run his return with and without the money - it's not that big of a difference for most people. We looked at this issue when my DSD lived with us for half the year one year and difference between claiming and not claiming her was not worth the risk of an audit.
He needs to modify the custody agreement so that it clearly spells out who claims the deduction each year. She clearly can't be counted on to honor a verbal agreement, so it's up to him to either file first or get a court order that spells this out.
I suggest that the IRS will not compare returns and therefore will not question who was in error. I suggest that the only way IRS would know or even care is if they do an audit and audits are done on only a very small number of filings. Your husband is not responsible for what his ex does and so will not be in trouble if there is an audit.
I think I'd just let it go until the IRS questions you and then ask them what they require for proof. I suggest that only the IRS knows what they require in your specific case and I wouldn't want to stir it up.
My ex and I filed in error and the IRS eventually just accepted both of our returns even tho one of us should've file differently. They seem to be picky about such small matters at times but they're just not equipped to handle everything. I'm not saying one should cheat. I am saying we do the best that we can and so does the IRS. Just let it go for now. If they audit yours or your husband's ex they will tell you what they need to know.
