2003 Taxes - Claiming Dependants

[billdad]

A friend of mine, who is divorced, has two (2) children.  She and her ex have joint custody (50/50) and he does NOT pay CS.  He should, but at the time of the divorce her lawyer did a poor job of defending her rights and left her ex off the hook on a number of issues, including claiming exemptions.
 
In the divorce settlement, there is NO statement about one parent claiming one child and the other claiming.  For a two-parent, two-children situation, it's a no brainer, right?  Anyway the lawyers missed it, so here they are.  

Apparently her ex has already filed his 2003 return, claiming BOTH children.  He also received the $800 advance child tax credit last summer and pocketed it all (he should have given her $400).  Anyway, what if anything can she do?  If she filed and took one (1) child as a dependant, I would think both of their returns would be bounced back.  

I recommended that she write her ex a letter stating that she is going to take one of the children (by name and SS) on her return.  Then when the IRS comes calling, at least she has some record that she told him this is what she was going to do.  As far as the IRS, is there any law governing how each parent should be claiming dependants in this situation?  Since there is no agreement in place, how can this fairly be reconclied with the IRS, given her ex does not want to play fairly?

Your thoughts are appreciated!

Bill G.

[Kitty C.]

Go to //www.irs.gov and it will explain all about who gets to claim and who doesn't.  By the new guidelines (with or w/o a CO), he took the deductions illegally.  What I do recommend is that she take her return to a professional to get done.

She could legally claim BOTH children (if he got the tax credit last year, he must have claimed them both last year, too), but she wouldn't see a refund.  Tho she WOULD get back anything with EIC.

What would happen if she claimed both is that her return would be flagged (along with his) since the SSN's of the children were used on both returns.  Then they will start investigating.  With him paying NO support and the kids living with her, she is entitled to it ALL, by IRS standards and w/o a CO ruling on it.

Remember that the wheels of democracy turn VERY slowly.  Our PBFH did the same thing a couple years ago and we didn't hear anything until the next Christmas.  Haven't heard anything yet as to disposition either, but was told by a human I talked to at our local IRS office that our and her returns would be flagged and checked more closely for quite some time.

My suggestion:  get the taxes done by a professional this year....BUT come next year, she MUST file immediately, as soon as she has all documentation (W-2's, etc.), preferably on line. She MUST beat him to the punch or she will never see anything.

[billdad]

Thanks for the info.  

FYI, the children live at mom's and dad's house an equal amount of time.

Does it really matter who files first?  In either case, the IRS will flag it both returns, right?

[Kitty C.]

Yup, they certainly did ours, and we filed first in Jan.!  It's only because both returns used the same SSN.

The IRS has new rules in regards to who can claim based on how long in each home the child lives in, so you might want to contact a professional tax preparer to get the specifics.

[patton]

I got my refund for 2003 yesterday 3/29.  The grandmother of my son went to Rapid File or something and also claimed him.  She did this in 2002 also.

My CPA tried to tele file in 2002 and my claim kicked out.  I mailed it in and received paperwork for an audit.  I sent in all the required information and got my refund in about 90 days.  The grandmother had to payback.

So 2003 she does the SAME thing, files again claiming son with Rapid File.  My CPA tries to tele file again and it kicks out. I mailed in copy and received refund without doing audit (as of yet).

The mother and I were never married, and in 2002 I proved I had him in my physical custody over 50% of the time and supported him.  Note here I did not have LEGAL custody, just physical, as mother ran off and left him with me on several occasions.

In 2003 I also had him for some extended times, plus I received sole custody of son in July 2003.  I called the IRS several times before I filed, and they asked me about 20 questions.  There are some new rules concerning married and unmarried parents that were different from 2002.

The final opinon of the IRS since custody changed is that I had sole custody at the end of the year, plus I could prove I had child and supported child more than 50% of the year and he was physically with me.