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Author Topic: Claim child for taxes  (Read 9102 times)

Wfs

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Claim child for taxes
« on: Jan 09, 2008, 02:23:31 PM »
I'm a DH who needs to know if a OM can claim my child for taxes. DW told me I cannot claim my child. DW is not working nor has worked for over two years. She is letting OM she is living with claim my child.

I pay CS every month for my child. DW states she is the only one who is financially responsible for our child. I still cannot figure that one out.

Is there anything I can do?


Ref

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RE: Claim child for taxes
« Reply #1 on: Jan 09, 2008, 02:42:43 PM »
I am not sure about your acronyms but I think I have sorted it out.

You are the non-custodial father. The custodial mother wants to claim the child on her joint return with her new husband.

The IRS states that if a child lives with a parent the majority of the time, that parent gets to claim. It doesn't matter who makes money or child support arrangements. The only way a non-custodial can claim is if the custodial signed a document allowing it or by court order.

Sorry. Maybe this is something you can address if you have to go back to court. I don't think it is unreasonable to ask for ever other year. I wouldn't go to court over this alone though. It isn't worth the $$ and headache.

I copied the IRS wording and link below for your reference.



Children of Divorced or Separated Parents
A dependent is either a qualifying child or a qualifying relative. In most cases, because of the residency test (see item (3) under Tests To Be a Qualifying Child in Table 3), a child of divorced or separated parents will qualify as a dependent of the custodial parent under the rules for a qualifying child. However, the noncustodial parent may be able to claim the exemption for the child if the special rule (discussed next) applies.

Special rule for divorced or separated parents. A child will be treated as the qualifying child or qualifying relative of his or her noncustodial parent if all of the following apply.
The parents:

Are divorced or legally separated under a decree of divorce or separate maintenance,

Are separated under a written separation agreement, or

Lived apart at all times during the last 6 months of the year.

The child received over half of his or her support for the year from the parents.

The child is in the custody of one or both parents for more than half of the year.

Either of the following applies.

The custodial parent signs a written declaration, discussed later, that he or she will not claim the child as a dependent for the year, and the noncustodial parent attaches this written declaration to his or her return. (If the decree or agreement went into effect after 1984, see Divorce decree or separation agreement made after 1984, later.)

A pre-1985 decree of divorce or separate maintenance or written separation agreement that applies to 2007 states that the noncustodial parent can claim the child as a dependent, the decree or agreement was not changed after 1984 to say the noncustodial parent cannot claim the child as a dependent, and the noncustodial parent provides at least $600 for the child's support during 2007. See Child support under pre-1985 agreement, later. "

http://www.irs.gov/publications/p504/ar02.html#d0e1405



Good Luck
Ref (Public Accountant)


Giggles

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What does your divorce decree state?...m
« Reply #2 on: Jan 09, 2008, 02:43:20 PM »
That should have been listed in there if not then you may want to modify to get it addressed.  I will assume that OM is Other Male??  If they are not married then he cannot claim them on taxes, if they are married then you may be SOL if it isn't addressed in the decree.
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Wfs

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RE: Claim child for taxes
« Reply #3 on: Jan 09, 2008, 02:58:12 PM »
My ex-wife is not married to this man.

Wfs

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RE: What does your divorce decree state?...m
« Reply #4 on: Jan 09, 2008, 03:20:31 PM »
The divorce said nothing.

In 2006 I claimed my child. My ex told me her taxes were kicked back because I claimed my child. My ex hadn't worked at all in 2006 so I believe the taxes that were kicked was the man she is living with.

My ex is not married to this other man. She told me I could not claim my child this year. I truly believe she will have this other man claim my child. She did not work in 2007 either.



ocean

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RE: What does your divorce decree state?...m
« Reply #5 on: Jan 09, 2008, 03:25:37 PM »
He can not legally claim her. You could claim child. File early and see what happens. You can prove mother is not working and you are supporting child. If she is not working then she should not be filing anything??? Something is not right??? Maybe they are married and she is not telling you?

wysiwyg

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RE: What does your divorce decree state?...m
« Reply #6 on: Jan 09, 2008, 03:35:55 PM »
We have the ability to claim my SS on our taxes.  One year BM also claimed the child and we both got notices from the IRS, it was a computer generated notice that 2 people (not giving the other party's name) had claimed a dependant with the same SS#.  The notice asked us to review our filing and correct and refile if necessary and if we believed our forms to be correct to do nothing.  We did nothing and never heard anything back and we assumed that BM changed her form.

I did find out tho that had BM NOT changed her form either then the IRS would call us both to come in for a meeting to prove who could claim the child.

My point is this - claim your child, let the OM claim as well, I bet the OM will change their form when the IRS contacts you both and perhaps you can at that point decide where you might wan to go with that legally if it arises.

BTW, it took the IRS a year to send us that notice.

Wfs

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RE: What does your divorce decree state?...m
« Reply #7 on: Jan 09, 2008, 03:52:17 PM »
I am sure my ex is not married. It would give her nothing but pleasure to tell me she was married and I would not be able to claim my child. She says that I will get in trouble with the IRS.



She has threatened me countless times about getting more money saying child support is not enough. What she wants is enough money so she does not ever have to work.


mistoffolees

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RE: What does your divorce decree state?...m
« Reply #8 on: Jan 09, 2008, 04:39:15 PM »
>He can not legally claim her. You could claim child. File
>early and see what happens. You can prove mother is not
>working and you are supporting child. If she is not working
>then she should not be filing anything??? Something is not
>right??? Maybe they are married and she is not telling you?

I disagree with part of this.

You are right that the 'OM' can not claim the child if he's not married to CP. However, that doesn't automatically make BF eligible to claim the child.

If there is no court order otherwise, the deduction goes to the parent who has the child >50% of the time. It doesn't matter if that parent makes money or not.

In this situation, it seems that BM would file as head of household claiming the child. Due to various credits, she would probably get money back even though she has no income.

The only way for the father (NCP) to claim the child would be if he can get the mother to sign a form (8532, IIRC) relinquishing her rights to the credit. If the father files without that form, he's likely to end up paying the tax AND penalty later. It might be worth offering her something in return for signing the 8532 form.

mistoffolees

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RE: What does your divorce decree state?...m
« Reply #9 on: Jan 09, 2008, 04:40:57 PM »
>The divorce said nothing.
>
>In 2006 I claimed my child. My ex told me her taxes were
>kicked back because I claimed my child. My ex hadn't worked at
>all in 2006 so I believe the taxes that were kicked was the
>man she is living with.
>

Not necessarily. If you have a dependent child, you can file taxes even if you have no earned income and you will get a tax credit.

wysiwyg

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RE: What does your divorce decree state?...m
« Reply #10 on: Jan 09, 2008, 04:48:08 PM »
"The only way for the father (NCP) to claim the child would be
if he can get the mother to sign a form (8532, IIRC)
relinquishing her rights to the credit. If the father files
without that form, he's likely to end up paying the tax AND
penalty later. It might be worth offering her something in
return for signing the 8532 form." (I think you meant 8332 here?)

I disagree with this as we have been filing our taxes without the 8332 because even though our decree states we can legally claim the child if the CS is current, and that BM is to execute all tax forms necessary to do so, she refuses.  So, after speaking to the IRS and our accountant, we file without the 8332 enclose copies of the decree that state we have the legal right to the credit, a letter explaining this, and a certified copy of the CS paid for the calendar year.  We have done this for the last 13 years.  We do have to paper file beacsue of this, however I was also told by the IRS that they do not care who claims the child as long as only one person does, when 2 people file with the same SS# then things get sticky.

mistoffolees

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RE: What does your divorce decree state?...m
« Reply #11 on: Jan 09, 2008, 05:26:26 PM »
>"The only way for the father (NCP) to claim the child would
>be
>if he can get the mother to sign a form (8532, IIRC)
>relinquishing her rights to the credit. If the father files
>without that form, he's likely to end up paying the tax AND
>penalty later. It might be worth offering her something in
>return for signing the 8532 form." (I think you meant 8332
>here?)
>
>I disagree with this as we have been filing our taxes without
>the 8332 because even though our decree states we can legally
>claim the child if the CS is current, and that BM is to
>execute all tax forms necessary to do so, she refuses.  So,
>after speaking to the IRS and our accountant, we file without
>the 8332 enclose copies of the decree that state we have the
>legal right to the credit, a letter explaining this, and a
>certified copy of the CS paid for the calendar year.  We have
>done this for the last 13 years.  We do have to paper file
>beacsue of this, however I was also told by the IRS that they
>do not care who claims the child as long as only one person
>does, when 2 people file with the same SS# then things get
>sticky.

That's an entirely different situation. In your case, the decree says you can claim the deduction. This negates the need for a 8332 (it says right on the form that you don't need to file an 8332 if you have a court order giving you the deduction**).

In the case of the OP, the decree is silent on the matter - which means that the IRS rules apply. Under IRS rules, only CP can claim the deduction unless there's an 8332 on file. Furthermore, in the case of the OP, the BM is already claiming the child, so there's going to be an IRS conflict - and the IRS rules say the mother gets it.

Of course, if OP could get a court order giving him the deduction, then he'd be in the same situation you are in today and he could claim the deduction even without an 8332.

If the father claims the deduction under those circumstances, he's asking for trouble. In reality, since he's signing an affidavit saying that he's legally entitled to the deduction, he's really committing fraud.  Your situation is different enough (for the reasons given above) that he should not follow your lead.


** Technically, the fact that you are required to be current on your child support to claim the deduction means that the 8332 SHOULD be required (since only a direct court order on who gets the deduction without any conditions is supposed to be valid without an 8332), but the IRS is apparently ignoring that nuance.

Kitty C.

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BT, DT..............
« Reply #12 on: Jan 09, 2008, 07:04:48 PM »
And in our situation, it happened almost exactly the same way.  Part of the reason BM filed after we did was because she was claiming DH wasn't current on CS, which is a prerequisite (in the order) to his claiming.  We provided numerous examples of proof, but she wasn't satisfied until we got CSRU to give us a notarized copy of their statement, which showed he'd paid (it just didn't get into her account by 12/31), and by then it was past 4/15.

We have never had BM sign the IRS form and, even in this instance with a dispute, the IRS never asked for it.  We got the notice right before Christmas that same year and we did nothing.  BUT, I did call the IRS soon after that and got a real human being to talk to thru a local office.  I asked her what we could do to protect ourselves from this happening again and her EXACT words were 'File early.'  Apparently they didn't care about whether we had an IRS form signed by the BM.........we already had a 5+ years history by then of claiming SS and that's what they were going by.

If you can, see if you can talk to a 'live' IRS representative and see what they say.  If there's nothing in your order that states who gets to claim (and I'm really surprised that it doesn't), they would be the ones to tell you what you can and can't do.  I would NOT rely on a tax preparer.  Talking to the IRS on the phone is free.........bending the ear of a licensed tax preparer could cost you............kind of like getting a consultation with a doctor or atty.  

Personally, I was amazed at the information the IRS gave me.  We were 'specifically' told to file early, because in their process, he who claims first, gets the deduction, and that's verbatim from the agent I spoke with.  Nothing will flag as a problem unless she were to claim, too.  As for the 'other man' living with her, he couldn't legally claim your child any more than I could.  And, since they aren't married, she can't file a joint claim with him, either.
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wysiwyg

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RE: What does your divorce decree state?...m
« Reply #13 on: Jan 10, 2008, 05:20:13 AM »
"This negates the need for a 8332 (it says right on the form that you don't need to file an 8332 if you have a court order giving you the
deduction**)."  Where?

I saw on the form and the publication (504) "Noncustodial Parent. Attach this form or similar statement to your tax return for each year you claim the child's exemption."


Ref

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Resident Accountant Here
« Reply #14 on: Jan 10, 2008, 08:20:14 AM »
Misto is right on this one.

BM can claim if she works or not UNLESS it is court ordered (in a parenting agreement or divorce decree) OR you have the CP sign a document stating that the NCP gets it.

There is no arguement here. It is pretty cut and dry. If she has physical custody of the child over 50% of the time and everything is silent about who gets to claim, CP gets it. She could be the worst person on earth. She could be unemployed until the child is 18. She still gets it.

You could illegally file claiming the child before she does and you will probably get the credit, but once she files you will just owe. Not to mention you will have to be looking over your shoulder to see if the IRS has caught the "error" for at least 3 years.

Like I said, if you have to go to court over something else, it is not unreasonable to ask for every other year. I wouldn't go after this alone. It wouldn't be worth the $ and headache.

Ref

mistoffolees

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RE: What does your divorce decree state?...m
« Reply #15 on: Jan 10, 2008, 10:43:20 AM »
>"This negates the need for a 8332 (it says right on the form
>that you don't need to file an 8332 if you have a court order
>giving you the
>deduction**)."  Where?
>
>I saw on the form and the publication (504) "Noncustodial
>Parent. Attach this form or similar statement to your tax
>return for each year you claim the child's exemption."
>
>

You can find IRS form 8332 at:
http://www.irs.gov/pub/irs-pdf/f8332.pdf

The exact workding I was referring to was:

"Post-1984 decree or agreement. If the
divorce decree or separation agreement
went into effect after 1984, the
noncustodial parent can attach certain
pages from the decree or agreement
instead of Form 8332. To be able to do
this, the decree or agreement must state
all three of the following. [snip]"

Note that one of the conditions says that technically this should not work if the dependent exemption is contingent on paying support.

wysiwyg

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RE: What does your divorce decree state?...m
« Reply #16 on: Jan 10, 2008, 03:05:17 PM »
Yes you are correct, as was I, I think we were on the same page but not communicating, you stated "attach an agreement" and I stated "or similar statement".

I had originally thought you were stating that there was no need to file the 8332 or anything else for that matter and nothing else was said about an agreement or similar form.  Sorry for the confusion.  

Kitty C.

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RE: What does your divorce decree state?...m
« Reply #17 on: Jan 10, 2008, 04:52:00 PM »
Then why are they not requiring us to have her sign it, when DH can only claim SS if he's current in support?   The only thing we've ever provided is a copy of the order, but that was years ago.  Makes you wonder if it depends on who gets your return to process...........
Handle every stressful situation like a dog........if you can't play with it or eat it, pee on it and walk away.......

mistoffolees

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RE: What does your divorce decree state?...m
« Reply #18 on: Jan 10, 2008, 05:12:52 PM »
>Then why are they not requiring us to have her sign it, when
>DH can only claim SS if he's current in support?   The only
>thing we've ever provided is a copy of the order, but that was
>years ago.  Makes you wonder if it depends on who gets your
>return to process...........

As I said, IRS seems to be missing that nuance in your case. Clearly, according to their own regulations, the requirement for you to stay current means that they shouldn't accept the divorce decree.

Thinking about it, that exception makes sense. If the decree says you need to be current on support to be entitled to the deduction, the IRS has no way of knowing whether you're current or not - so they shouldn't allow it.

AFAICS, you've been lucky. I'd make sure you can prove that you're current on support and save the documentation with your home tax files in case you get audited. I would also see about getting that clause removed next time you're in court. Legally, EVEN IF YOU ARE CURRENT on your support, the IRS could require a signed 8332.

sparrowmom

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RE: What does your divorce decree state?...m
« Reply #19 on: Jan 17, 2008, 11:02:01 PM »
>
>Not necessarily. If you have a dependent child, you can file
>taxes even if you have no earned income and you will get a tax
>credit.

HUH????
Who's Ass did you pull that out of?

Last I checked, the IRS requires some form of income and W2's to back it up.  
 (Welfare does not count)

So even if the impossible occured and the one claiming the dependent earned at least a Dollar....  

WOW, they might get less than $10!!!

If the custodial parent is worried about the deduction, there is a valid reason.
  Trust me! it is not something as little as a few bucks!

Geez, if one would take up this issue. Please provide the court with your last few years of tax returns and request the same of the opposing party!

Or, save the fee and offer to pay the parent the $10 and see what happens..

  The one that takes the $$ might have more to hide than you think!!

LAK

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Can't get Earned Income Credit....
« Reply #20 on: Jan 19, 2008, 09:07:57 PM »
unless you have earned income.

LAK

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Can't get any credits...
« Reply #21 on: Jan 19, 2008, 09:16:32 PM »
with no income.  No need for BM to file a return.

Ref

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RE: Can't get Earned Income Credit....
« Reply #22 on: Jan 20, 2008, 08:03:02 AM »
I didn't have time to read the whole thread again. It is getting a little much. I didn't see where anyone was referring to the EIC.

Anyway, to try to help this person and not get too distracted, this is how it works.

1. The boyfriend has no rights whatsoever to claiming the dependency.
2. The poster has no rights to the dependency without a signed agreement, such as the IRS form or another similar letter or a court order.
3. It makes 0 bit of difference if BM benefits, she is the only one entitled to claim the child.

The poster could push it and file anyway. The IRS won't throw you in jail for this, but will want their money back, plus interest & penalties.

The poster could call the IRS reps. They are very helpful, and get his own answer. It seems there are a lot of well-meaning people posting on this topic that are just not very tax savy and it makes it confusing.

Best wishes,
Ref

LAK

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As a tax preparer for 23 years.....
« Reply #23 on: Jan 20, 2008, 12:56:33 PM »
some of the posts were talking about the BM getting tax credits even though she had no income.  That is not true.  You cannot get credits without having income.  I even ran it through my professional tax program to verify that.

The BF could claim that he provides over half of the support since BM doesn't work, and they live with him.  But, if I was the dad, I'd claim the child.  Worst case scenario is they dissallow it.




Ref

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Wow a preparer for 23 years...
« Reply #24 on: Jan 20, 2008, 04:29:59 PM »
I am amazed at your lack of professional ethics in suggesting that the poster should break the law.

Anyway, I agree with you about the credits. I am not sure if you are saying that you think the BF (meaning boyfriend) could claim the child because he pays half support and the kid lives with him. If you are, I STRONGLY disagree with you. It is pretty straight forward that a person can not claim a dependent unless they are a qualifying child or qualifying relative. This is the first test for dependency and the boyfriend would fail that right off the bat.

I admit that I have most of my background in audits and they are my strong points, but this is really very basic tax and makes me question in what capacity you have prepared a return and how long it has been since you looked at one. Your ethics also make me question how involved you really are.

Not to start another one of these AWFUL debates, but I guess as an accountant it bothers me when someone puts themselves out as a expert and have nothing to back it up.

Here is the like to the IRS site that spells out what a qualifying relative and qualifying child it.

http://www.irs.gov/publications/p501/ar02.html#d0e2859

Let me know if it is not clear and I would be happy to PM you about this further.

Ref

LAK

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Yep....23 years straight
« Reply #25 on: Jan 20, 2008, 05:57:32 PM »
Not one of my clients (knock on wood, LOL) has ever been audited.  I'm sure they still wouldn't be coming to me if they had.  I guess we have accounting in common too.  That is what my Bachelor's Degree is in, and I've also been doing that for 23 years.  Never did like public accounting though, I stuck with private.  Matter of fact I have a very successful business doing accounting and taxes.

I know what you mean about people giving advice when they don't know what they are talking about.  That is why I had to chime in when the poster was being told that the BM would qualify for tax credits even without having any income.

BTW..never said the BF should claim the child.  I also did not advise the poster on what to do, I said what I would do if it were me.  After this many years in the tax business, you'd be surprised at how much gray area there really is.

Oh well it was nice conversing with you...actually, I need to get preparing some of the Corporate returns sitting on my desk.

Have a good day.

sparrowmom

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RE: What does your divorce decree state?...m
« Reply #26 on: Jan 20, 2008, 10:49:56 PM »
>I am sure my ex is not married. It would give her nothing but
>pleasure to tell me she was married and I would not be able to
>claim my child. She says that I will get in trouble with the
>IRS.
>
>
>
>She has threatened me countless times about getting more money
>saying child support is not enough. What she wants is enough
>money so she does not ever have to work.
>
>

I thought you said that she did not work?

Also thinking, if she has not worked in over 2 years as you say, they must be making enough to support what they have.

She is working or married and you just don't know it.

I am no tax expert, but I would also assume that if something was
"kicked back"  both parties would be notified?
I have never had an issue with the IRS, but I would think if a SS# came up twice, a notice would be sent to both?

sparrowmom

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RE: Yep....23 years straight
« Reply #27 on: Jan 20, 2008, 11:47:18 PM »
Just sending ;)

LAK and Ref are both right on the points.

I just don't think one advocated pulling a fast one on the IRS as thought.  
They merely pointed out the very Gray area. There will be no Red flags if only 1 SS# is claimed.
 I honestly see no harm in allowing a parent to claim if the other parent doesn't. (court order or not) But I think that the Primary Provider should be allowed the deduction every year if they are earning enough that it impacts the reduction in owed tax.  

One also must consider the impact the deduction might have after the child is in HS. If they plan to attend college this will have an impact.

Knowing most NCP's count down the days before the support ends....
and have no desire or "Court Order" that will finance continued education.  

These things Need to be considered if your children will need the Financial Aid.  

 If you expect your child to rely of Federal Financial Loans....  

Well, then you just shoved your hostility and greed  upon your Kid.

Unless you are willing and able to pay what FA does not cover,  You may have just shoved 20 years of debt on them.

This is assuming the CP is living in Poverty as most NCP's say.  

Heck, if the NCP is the one living in poverty, then of course they could use the exemption more.  

 It is not about US... it is about the kids.

Ref

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Then we can agree
« Reply #28 on: Jan 21, 2008, 05:48:06 AM »
The posters concern was that the BM's SO would claim the child and the poster wanted to know if he could claim the child instead.

The answers to those two questions are no and no. There is no grey area. According to IRS code they are no for both questions.

1. No to the SO claiming because they would fail the first test of qualifying child/relative.

2. No to the poster claiming because he doesn't have the proper IRS form or other signed agreement with BM.

I think that is all the poster was asking. This board was going a little nutty talking about credits in general then EIC. None of these matter if the child can't be claimed as a dependent on the poster or BM's SO's taxes.

Hey LAK, why don't we put our experiences together in public accounting to help out those who post on this board on their individual return questions? You have been here a while. You know every year this board lights up with questions like this and a bunch of people with no tax background offer their opinion. It would be good if we could use out credentials to let people know what the proper tax treatment would be.

Ref

LAK

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RE: Then we can agree
« Reply #29 on: Jan 21, 2008, 08:14:16 AM »
Man....I hate to see lost exemptions, LOL

Anyway, I have been around a while and answer tax questions on another board.

I don't check in to much over here, but if I see any, I'd be glad to help out.

lucky

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RE: Yep....23 years straight
« Reply #30 on: Jan 21, 2008, 08:54:52 AM »
So we're being hostile and greedy since we expect our kids to finance their own college education?  My dad and mom must have been pretty greedy and hostile as well, huh?

[em]Lucky

Lead your life so you wouldn't be ashamed to sell the family parrot to the town gossip.
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Lucky

Lead your life so you wouldn't be ashamed to sell the family parrot to the town gossip. ~  Will Rogers

wendl

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RE: Yep....23 years straight
« Reply #31 on: Jan 21, 2008, 09:29:42 PM »
I am a CP mom and totally disagree with you (I don't or rarely get cs)

I feel the parent whom supports the child 50% or more should be able to claim the child.

One year my dh paid $7k in cs and his ex didn't come even close to making that working for a full year. SAD in my opinion

Many woman sit on their lazy buts and work part time (why work full time with you have TAX FEE check coming in) then you claim the child and get  butload of money.  I know many lazy woman that do that, while the responsible men pay and support TWO hosueholds, while mom or cp support 1/2 a household.

JMO.

**These are my opinions, they are not legal advice**

Kitty C.

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RE: Then we can agree
« Reply #32 on: Jan 21, 2008, 10:35:43 PM »
Ref, You've been here a LONG time and I certainly respect your opinion and, in this case, your expertise as well.  But I have to agree with LAK when he says this can be a very gray area.  DH has been claiming SS for 11 years without ANY form signed by the BM.  Yes, it does state in their CO that if DH is current on CS, then he can claim SS.  But how would the IRS know EVERY year if that was the case?  We certainly haven't told them.

The bottom line (and this was confirmed by an actual IRS agent) is that as long as only one parent claims the child, the IRS will not question it whatsoever.  It's when the child's SSN is used on more than one return do they sit up and take notice.  That happened 3 years ago with us (BM was adamant DH wasn't current, but CSRU proved her otherwise), I am assuming the IRS went after BM (since she filed well after us and we had already received our refund), and the IRS hasn't questioned it since.

My original advice for the OP still stands:  if at all possible, contact an IRS agent and get their take on the situation.  Only an IRS agent could tell you if the exemption can be taken and by which parent.
Handle every stressful situation like a dog........if you can't play with it or eat it, pee on it and walk away.......

babyfat

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RE: Claim child for taxes
« Reply #33 on: Jan 22, 2008, 11:33:20 AM »
I can give you a true account of what happened to a friend of mine that might help. In the house lives boyfriend who works, my friend who collects SSI and her son who gets an AFDC check. Father of the son is nowhere to be found. They went to an accountant for taxes with boyfriends W2 and they wanted for him to claim all three of them and the tax accountant said no. She said that he could not claim the son of his girlfriend unless him and the girlfriend have gotten married. He told my friend that she had no earned income so she could not claim the child for an earned income tax credit. Since social security and afdc are non taxable income there was no need for her to file taxes at all. End outcome boyfriend filed as a single man. My friend did not file for her and her son there was no reason to since she could not get an EARNED income tax credit since she did not EARN money that year.

If your ex is not married and did not make any income and has no W2 she can not claim the child so if you did and the child is only claimed once you get the refund. If her boyfriend tries to claim him and the number hits the system you may have some what of a head ache but in the end you should still get the refund. Which is exactly what some of the posters have said others just might not understand what the words "earned income" means.

Ref

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Your situation is a little different
« Reply #34 on: Jan 22, 2008, 12:01:50 PM »
You are right. No red flag will be raised if only one person claim the child.

My thoughts are that the OP's original concern is that the mom's boyfriend was claiming the child. He also wanted to know if he could.

According to the code, neither can, legally. It isn't really debatable.

I am sure there are many examples of people filing improperly, like claiming they donated more money during the year than they did, and didn't get caught, but it still doesn't make it right or legal.

In your situation, you have a stipulation that your DH has to be up to date on his support. That is the gray area. If your agreement was silent, it is not longer gray.

My problem with the original poster is that he states that BM doesn't work and therefore has no income. I guess he is assuming that she will not file at all. The problem with that is that she may file anyway. There are tons of reasons why people are required to file even if they don't have a job. She could even file just to be vindictive and force the IRS into not allowing the dependency claim.

In my professional opinion, it is very clear that he is not legally able to claim the child and neither is the boyfriend. If he does claim the child and the BM does as well, I don't think it will be too difficult to predict a poor outcome for the poster. If he gambles and improperly claims the child and BM doesn't, then all bets are off.

I agree that calling the IRS is the right way to go. If you do call them, would you mind posting what they said? There are too many other people that post this question around tax time and it would be helpful.

Take care,
Ref

Ref

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Your situation is a little different
« Reply #35 on: Jan 22, 2008, 12:01:50 PM »
You are right. No red flag will be raised if only one person claim the child.

My thoughts are that the OP's original concern is that the mom's boyfriend was claiming the child. He also wanted to know if he could.

According to the code, neither can, legally. It isn't really debatable.

I am sure there are many examples of people filing improperly, like claiming they donated more money during the year than they did, and didn't get caught, but it still doesn't make it right or legal.

In your situation, you have a stipulation that your DH has to be up to date on his support. That is the gray area. If your agreement was silent, it is not longer gray.

My problem with the original poster is that he states that BM doesn't work and therefore has no income. I guess he is assuming that she will not file at all. The problem with that is that she may file anyway. There are tons of reasons why people are required to file even if they don't have a job. She could even file just to be vindictive and force the IRS into not allowing the dependency claim.

In my professional opinion, it is very clear that he is not legally able to claim the child and neither is the boyfriend. If he does claim the child and the BM does as well, I don't think it will be too difficult to predict a poor outcome for the poster. If he gambles and improperly claims the child and BM doesn't, then all bets are off.

I agree that calling the IRS is the right way to go. If you do call them, would you mind posting what they said? There are too many other people that post this question around tax time and it would be helpful.

Take care,
Ref

 

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