What happens if both parents claim child on tax return?

[chickenbubbasmom]

 Wondering if anyone has experience dealing with the irs on this matter.

My oldest stepson has been living with us since Feb 3rd of last year. He was taken out of his mother's home after her BF abused him. Both parents still have joint legal/physical custody under the new order (dated 02/03/2011). However, the order states that father's home is to be considered x (older child's) primary residence and mother's home is to be considered y(younger child's) primary residence.

DH e-filed his taxes a few weeks ago, and is scheduled to have his refund check mailed tomorrow. Last night when my stepson returned from visiting with BM, he told us BM claimed him on her taxes (apparently she had been questioning him as to whether his dad had filed taxes yet). DH texted her to let her know he has already claimed SS and that she has no right to do so. To which she responded that she already has claimed him as well and mailed her return last week. She proceeded to tell this whole story of how DH let SS live with her after the court order and she can prove it because he stayed in her school district until school let out June 3rd. Therefore, she had him 6 months. She went so far as to make up a story that it was too far for DH to drive and so he allowed the child to stay with her during the week. You can imagine how crazy this sounds, knowing its completely made up and she knows that we know it's a lie.

So, this has me a bit worried. SS did stay in the school district, because BM had already pulled him out of one school and put him in home school. He was turning 15 in 8th grade and in danger of failing again. DH had a good relationship with the home school teacher, and kept him there until the end of 8th grade in order that he might graduate and have a fresh start in high school this year. DH met with the teacher once a week, BM never attended. We have proof that SS was added to medical insurance in March, and DH filed to modify child support in April. On May 19, child support ended and the paperwork from DCSS shows older stepson as being with DH 75% of the time. BM said she is calling the irs today and auditing DH for fraud, so he doesn't get his refund. Can she even do that? Does anyone know if she has a leg to stand on? Apparently someone advised her that she could get away with this because of where SS went to school for the first half of the year.

[chickenbubbasmom]

I should add that the court order doesn't state anywhere who is allowed to claim the children, and other than saying father's home is primary and mother's is secondary for the child in question, it doesn't give any percentage of time breakdown (it just lists when each child has visitation with other parent). It states they have joint legal and physical.

The paperwork from Child Support Services dated 5/19/11 shows a breakdown of older son being with DH 75% and younger child being with DH 25%.

[Spaceman1982]

Actually, they will both get audited....so she didnt need to report it. Its a discrepency with the fact that two seperate people are claiming child/ren, so the IRS system is red flagged and both get audited and will both be investigated.

If the court order doesnt specify then thats gonna be trouble. However, they may give it your DH since he is listed as "primary residence" and, if I read correctly, he has child 75% of the time which gives her 25% which is only 3 months and if she actually read the IRS return sheet it clearly states "child must live with you MORE than 6 months out of the year."

[Spaceman1982]

Side note, I would get them to either a) agree to it and put it on paper or b) go to court and have the family judge sort it out. But he will probably make you alter years if they have joint physical.

Question....in Nevada we had a case called Rivero vs Rivero which actually outlines timeshare structures for primary and joint physical custody.....does your state??

[chickenbubbasmom]

I am wondering if he will get his refund still since it is already approved and set to be issued tomorrow, and she filed paper..or if she can somehow hold it up.

My understanding from the irs website is that the rule is wherever the child spent most nights (6 months and 1 day or more) entitles that individual to claim the child. The problem being BM is boldface lying and saying that DH allowed the child to live with her until school was out. Ludicrous considering the child came to our home after BM's boyfriend assaulted him and DH filed ex-parte to get him out of the home. How can DH prove or disprove, it's his word against hers?

The court order doesn't state percentage, but that father's home is primary residence. We have a paper from child support dated 5/19 when we went back to court to have CS modified (due to the change). It lists older child (by name) as being in DH's care 75% of the time in the new calculation.
I don't know about any specific cases, but we are in CA. The courts generally give everyone joint/joint here, I have even seen people with supervised visitation still having joint custody on paper.

[Kitty C.]

Been there, done that....here's how the IRS views it:

Per DH's CO, he can claim SS every year if he's current on CS as of 12/31.  A few years ago, their CS order was switched from the county to CSRU, so the CS was taken out of DH's check, went to CSRU, and then sent to BM.  Well, there appears to be a delay between the time that they get the money from DH's employer and BM gets it in her acct., because as of 12/31 that particular year, she hadn't received it as of that date.  But we had the pay stub to prove it had already been taken out.

We have always filed our return early...within a few days of receiving our W2's.  Some time after that, BM told DH that he could NOT claim SS since he wasn't current on CS as of 12/31.  He showed her the pay stub and she even demanded a notarized letter from CSRU stating that he was current.  DH and her went back and forth all the way up to a few days before April 15th...she STILL refused to believe he was current.

By this time, not only had we received our refund, but it had already been spent on our winter vacation.  DH asked me what I thought would happen and I told him I didn't know, but obviously BM's return would raise a lot of red flags.  Sure enough, right before Christmas that same year, we received a letter from the IRS stating that a SSN had been used of two different returns (SS's) and that, if we had filed in error, we should fill out the form included and mail it back to them.  BUT....if we were certain our return was accurate, we should do nothing.  No kidding... that's what the letter said.  And BM had to have received the same letter and form.

So within a couple weeks of that, I started making phone calls and persisted long enough to actually get a HUMAN IRS agent on the phone...and she just happened to be about 45 miles away.  I explained to her what had happened and how, we had no idea what repercussions BM faced, and that we were worried it might happen again.  Over and over, she stated 'File first'.  She said that, as far as the IRS is concerned, he who files first, gets.  He who files second (claiming an identical SSN) gets investigated.

We never did find out what happened to BM regarding this...if they did give her a refund, they either made her pay it back or deducted it from her next year's refund (ouch!), but she has never said anything about it to DH.  And we haven't had a problem with claiming SS ever since....

[Kitty C.]

Regarding your DH's refund....he WILL get it tomorrow.  It would take an act of God to stop the IRS machine at this point for only one refund.  But when the IRS gets her return, they will go over it with a fine tooth comb.

One very important fact to keep in mind....Per the IRS, you follow THEIR rules unless you have a CO stating otherwise (submitted with the return) or Form 8832 filled out and signed by the custodial parent that allows the non-custodial parent the right to claim the child.  So if there is nothing in any of your DH's CO's that specifies who gets to claim the child, the IRS rules have to be followed.  And from what you're posted, your DH has already proven that he is entitled to claiming the child.  Another FYI...the IRS doesn't give a hoot where the child went to school, they only care about which parent the child spent the majority of the year with or who has primary custody.  Period.  If you still have doubts and are willing to be patient enough to wind your way through the IRS phone tree and holds to get to a human being, call the IRS directly and ask them.  Unless their rules have changed drastically, they will tell you the same thing.

[ocean]

First return in ...gets refund. So I agree, you will get refund and it will be up to her to deal with the IRS and fight it. She will get a letter that SS social security number was already claimed and ask to send proof that she had child.  You may get a letter that it is being questioned, then send your court order that you had custody most of last year.