Claim child for taxes

[wysiwyg]

"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]

>"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.]

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.

[wysiwyg]

"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]

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]

>"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]

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.]

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...........

[mistoffolees]

>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]

>
>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!!