Claiming my son after his father did by accident

[thompson1453]

My fiancé filed for his taxes. When it got to the questions about our son, he clicked that there was an agreement that the mother was claiming him on her taxes. Well, it told him since there was an agreement he was not eligible to claim him. It still asked for our sons information and he provided it (after I told him that didn’t sound right and he assured it was fine since he clicked the other parent was claiming him). When I went to file for my taxes, it rejected me. It said that his SSN had already been used and he was already claimed. My fiancé went over his taxes and it looks like he received EIC for our child. This has turned into a nightmare.. we didn’t get back any child tax return since he didn’t “claim” him. So I’m going to send my tax return in through the mail and claim my son. After my fiancé gets his full return back, he’s going to amend his. I guess my question is, will my tax return be denied by the IRS after they receive it? Do I have to wait for my fiancé’s amendment to go through to receive my refund? I know that amendments take 12-16 weeks. How long will it be before I see my tax return back?
My son has lived with us equally as we live together, but we agreed I would claim him as I was pregnant most of 2017 and have countless amount of OB and hospital bills to pay from my pregnancy. I also have sole and physical custody of my child as we’re not married and there is no court order, so in WI the mother has sole and physical custody until a court says otherwise.

[Hal_Al · Accepted solution]

You are doing it correctly: send your tax return in through the mail and claim your son. After your fiance's gets his full return back, he’s should  amend his to totally remove the child.

Your return will NOT  be denied or even delayed by the IRS. It will be processed in 6-8 weeks. You do NOT have to wait for your fiance's amendment to go through, or even be filed.

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If you and the other parent live together, only one of you can claim the child for any tax benefit. The TurboTax interview is confusing (it's designed for divorced parents). The second parent should not enter the child, at all. Doing so leads to mistakes. Your's is a common situation here, in this forum.

If you live together, you may decide between you who will claim the child. Only if you can't agree does the IRS have rules for who can claim the child. And those rules do NOT include "in WI the mother has sole and physical custody" .

1. The parent the child lived with the most, gets first claim. If that time  is equal,

2. The parent with the highest income (AGI) gets to claim the child

[thompson1453]

@Hal_Al
Thank you so much for your reply! I was wondering if the IRS would decide for us who gets to claim him. We both want me to claim him, but my fiancé got back the highest AGI so we were nervous they would deny me. He is gladly amending his tax return once he gets the full refund back on the 21st, and I’m filing mine by mail today. I was nervous I wouldn’t get the tax return back until this was settled as what some people told me will happen.
Thanks for your fast reply!

[Hal_Al]

No, the IRS doesn't make that decision, unless you both file competing claims (tax returns). So, as long as you agree, you can do it either way.
If you mail in your return, claiming the child and he doesn't file the amended return; then you will both hear from the IRS in 9-12 months. But, in the mean time, your return will not be held up.

[thompson1453]

@Hal_Al  thanks again for your responses. Looking at his downloaded tax report, he did not claim him as his dependent and only claimed himself. He didn't receive anything back for child tax credit as he didn't claim him. I think we're getting mixed up here because TurboTax filed for EIC when he entered in his SSN, and he should not have received any benefits for him. Hoping this will all be cleared up soon. Thanks!

[lbryant4274]

So will the IRS contact the father of the child with how much needs to be paid back once the return is amended?