Tax: Claiming the kids on taxes

[Tucker]

I currently have a temporary physical custody order that was given to me for my kids on August 20th.  As of right now there is no court date set to go in and get a final order.  Up until then my "X" had physical custody and claimed the kids on her taxes each year.

My question is this:

Do I need the final order to claim my kids on my taxes?  I know that for the year of 2004 I could at best claim them for half the year, but does this have to be in a court order to process?  My old divorce decree gave the right for claiming the kids to my "X" on her taxes.  


Thanks for any advice or information you can toss at me!  You do a great service to the people on this board!

  --Tucker

[patton]

First call the IRS and ASK them, write down the ID # and name of the person that gives you this information too.

The Tax laws have changed somewhat in the last couple of years, especially for unmarried parents, but  since you said divorce, I'm assuming you were married.

The IRS stand on this is and what was stated to me for 2003 was that the parent that has CUSTODY (PHYSICAL custody) at the end of the year gets the tax exemption.  Now IF the other parent does file first and gets the refund.........you are in a position to PROVE you support the child more than 50% of the time, and that you had physical custody more than 50% of the time.

Here's what I do and the IRS will ask you for?

I save EVERY receipt for EVERYTHING I purchase.

You will have to have a notarized signed statement from the school, daycare, or church showing the percentage of time the child was with you.  When our son was younger, I got the church and daycare to sign to write me letters.

You will have to have a notaried or at least on their letterhead showing rent or mortgage you pay plus utilities.

If you paid Child support any that year, get that statement also from the child support people (This is probably the most difficult one to get your hands on)

In other words SAVE anything and everything to prove you supported and had physical custody of that child.

In 2002, I was not the custodial parent, but the NCP, but I had him over 50% of the time and supported him.  Her mother claimed our son and got the refund, BUT she's having to pay it back now, because I had all the documentation the IRS wanted.

In 2003, I was the custodial parent as of July 24, but I had him over 50% of the time and supported him.  Her mother claimed our son again and got the refund,  the IRS also sent me the refund.  I don't know at this point if they have contacted her or no about repayment, but I have all the documentation ready to mail IF and when they do contact us.

I hope she has enough sense NOT to file in 2004, as I have had custody the WHOLE year and have had him 75% of the time.

Best advice.....Call the IRS

[Kitty C.]

Patton mentioned who files first.......this is VERY important.  We went round with the BM a few years ago, when she 'thought' DH was behind on CS, thus not allowed to claim SS for that year.  We KNEW he was current and I filed our taxes on line within 2 days of us getting all the needed paperwork, by the end of January.  Apapprently she claimed SS too, in April.

When I spoke with an IRS agent about this, her quote was 'the first who files, gets.'  When I asked her what to do if she tried this again, the agent's response was, 'I recommend you file as soon as possible.'

[patton]

The first time...I had to PROVE it, and waiting about 4 months for refund.


The second time, I'm assuming we both got the refund and at some point the IRS will contact us to see who had physical custody. Got refund about 4 weeks after filing.

[socrateaser]

>Do I need the final order to claim my kids on my taxes?  

No. The IRS is concerned with enforcing the tax laws of the United States, not the support laws of any individual State. I don't disagree with anything that the other contributors have posted. From a purely legal standpoint, however, the parent who can prove that he/she has actual physical custody of the minor child for more than 50% of the year, is entitled to the federal dependent tax exemption, UNLESS, the family law court orders otherwise.

How you go about proving this to the IRS is usually the issue. As agencies go, the IRS is one that is more interested in paperwork than actual substance. The person who reviews your return is never an attorney, until things get really hot and there's substantial money at stake, so if you have documents that demonstrate you have exercised more than 50% physical custody during the year, and you submit them to the IRS, then you will ultimately prevail, unless the other parent's documents are more believable.

Courts use a doctrine know as "substance over form" to make determinations of cases, i.e., the judge is interested in what's REALLY going on, rather than what some document purports to show.

The IRS is exactly the opposite, i.e., the auditor who reviews your return wants to look at some document that says, "Parent A gets the deduction," (to simplify the example to the extreme), because that will answer the question. The more vague/ambiguous the documents, the more difficult it becomes for the auditor to decide, until finally, he/she kicks it to a supervisor -- and that is what you want to avoid, because, as previously pointed out, the higher up it goes, the longer it takes, and eventually, it will reach an attorney's desk, at which point, you will probably need to hire your own, or surrender, because, ultimately, the IRS attorney's job is to advance the government's interest in maximizing tax collection.

So, make sure your first filing is conclusively in your favor, and then let your opponent attempt to destroy your argument. This goes along with what the other posters have told you.

[Tucker]

Wow!

Thanks for all the help.  This gives me a place to start.  

Since this post I've read on the IRS website that the deduction can not be split, it can either be claimed by Person A or Person B.  

Sad that the IRS would say "He who files first gets the deduction."  

I'd like to ask my "X" if she is going to claim the kids, but since we are not on speaking terms I'm not sure how to start that conversation.  


Thanks again for all your help on this and other matters as I went through my year long court battle to gain custody of my kids.  It's almost over!   :-)

[patton]

No you cannot split the deduction, ONLY one person can claim the deduction.

The first one to claim will proably get the refund, BUT if you have had custody for more than 50% of the time and can PROVE it, then you will also get the deduction and they will go after her for the overpay and she will have to pay it back with interest.