Tax Year Prior to 2020: My ex claimed our child, but our court order says I'm supposed to claim her. Can I e-file without claiming her and then mail an amendment once it's available?

[SusanY1]

If you met all of the requirements to claim the dependents and believe they should be on your tax return, the proper way to file is to list them on your back, and file the return by mail.  As you have learned, the return will not go through the e-file system.  Alternately, you can remove them, e-file, and then file an amendment claiming them.

What happens next is the same -

When the IRS receives more than one return listing the same dependents, each taxpayer receives a request for documentation to support the claim later in the year.  The IRS will evaluate the documentation and make a determination about the return that is correct.  The taxpayer(s) who have the dependent(s) removed from their tax return will have an adjustment for the amount of tax and will be billed the tax plus penalties and interest.  If certain credits are part of the corrected return,  the taxpayer can be banned from claiming that credit for the next two tax years (or in some cases, ten years).  

@Jrherm5115

[Jrherm5115]

@SusanY1 @ Thank you for your information. I also have the higher adjusted gross income in addition to the greater than 6 months living time

Is the paper filing something that the average layperson (me) can do? Or should the tax preparer that was paid to do my e-file be the one I go back to for this?

[djpallet]

I have a correlating question to that. my husband has it in custody order that he claims my stepdaughter while my stepson gets claimed by his ex wife. been this way for over 6 years.  she withheld my stepdaughter from us breaking custody order June of 2019. We file that child every year. we do have 50/50 and we covered all expenses while in court procedings.  We do have 50/50 custody. one takes one child and the other takes the other child. always been that way. So now, she decided to claim the child she is withholding from us while claiming the other child.  No granted also, we had my stepson more days than her. We both filed my stepdaughter because we always do and nothing changed. what should we expect . Im assuming this will be on her?

[Alwhitley22]

It will be on her. The irs doesn’t care who has 50/50. They wanna know who the child has spent the most nights with during the year. If the child has equal amount of time with both parents then the person with the higher income can claim the child but the money has to be split with the other parent. Either way if you are the qualified parent then the other parent has to have a tax consent form signed by you giving permission. It’s called the 8332 tax consent form. 

[Hal_Al]

@Jrherm5115 The higher AGI is not relevant.  Custody, for tax purposes,  is more than 182 nights at your home. It's that simple (proving it on audit may not be that simple).

"Is the paper filing something that the average layperson (me) can do?"  TurboTax still prepares your tax return, the same one you woulda e-filed.  You just print and mail it.  

"Or should the tax preparer that was paid to do my e-file be the one I go back to for this?"  Yes, he shoulda printed you two copes; one to sign and mail. The other is your file copy.

"I file married filing separate due to my husband being a disabled veteran who gets VA benefits and they are not taxable."  That's just plain wrong.   VA benefits are not taxable and they are not reportable. But, your spouse does not have to have income to file a joint return with you.  You may and should  file a joint return even if only one of you has no income.

Although a step parent has the same tax rights as a biological parent, your case is still stronger claiming the child on a joint return, rather than a Married filing separately (MFS) return.

_________________________________________________________________________

If you choose married filing separately as your filing status, the following special rules apply. Because of these special rules, you will usually pay more tax on a separate return than if you used another filing status that you qualify for.

1. Your tax rate generally will be higher than it would be on a joint return.
2. Your exemption amount for figuring the alternative minimum tax will be half that allowed to a joint return filer.
3. You cannot take the credit for child and dependent care expenses in most cases, and the amount that you can exclude from income under an employer's dependent care assistance program is limited to $2,500 (instead of $5,000 if you filed a joint return). For more information about these expenses, the credit, and the exclusion see Pub 17, Chapter 32.
4. You cannot take the earned income credit.
5. You cannot take the exclusion or credit for adoption expenses in most cases.
6. You cannot take the education credits (the American Opportunity credit and the lifetime learning credit), the deduction for student loan interest, or the tuition and fees deduction.
7. You cannot exclude any interest income from qualified U.S. savings bonds that you used for higher education expenses.
8. If you lived with your spouse at any time during the tax year:
a. You cannot claim the credit for the elderly or the disabled,
b. You will have to include in income more (up to 85%) of any social security or equivalent railroad retirement benefits you received, and
c. You cannot convert amounts from a traditional IRA into a Roth IRA.
9. The following deductions and credits are reduced at income levels that are half those for a joint return:
a. The child tax credit,
b. The retirement savings contributions credit,
c. Itemized deductions, and
d. The deduction for personal exemptions.
10. Your capital loss deduction limit is $1,500 (instead of $3,000 if you filed a joint return).
11. If your spouse itemizes deductions, you cannot claim the standard deduction. If you can claim the standard deduction, your basic standard deduction is half the amount allowed on a joint return.

You may not be able to deduct all or part of your contributions to a traditional IRA if you or your spouse were covered by an employee retirement plan at work during the year. Your deduction is reduced or eliminated if your income is more than a certain amount. This amount is much lower for married individuals who file separately and lived together at any time during the year.

If you actively participated in a passive rental real estate activity that produced a loss, you generally can deduct the loss from your non-passive income, up to $25,000. This is called a special allowance. However, married persons filing separate returns who lived together at any time during the year cannot claim this special allowance. Married persons filing separate returns who lived apart at all times during the year are each allowed a $12,500 maximum special allowance for losses from passive real estate activities.

Reference: https://ttlc.intuit.com/community/married/help/is-it-better-for-a-married-couple-to-file-jointly-or-...

[rapdevils]

I’m on a similar boat but just a bit different, in my divorce and custody papers it states that my ex and myself will claim one child each every year (2 children total) and she had gone to claim both. Is this a punishable act by the IRS OR Family Court if I were to take it there?

[KathrynG3]

Yes. The IRS will only grant one dependent deduction per social security number. I defer to the advice of your divorce attorney for your recourse in Family Court.

If your ex would agree to amending her filed return immediately and only claiming one child, she will save herself penalties and interest and lengthy correspondence with the IRS.

You, in the mean time, can properly file your tax return by mail claiming one child as agreed. The filing will take about 16 weeks for the IRS to process. It would be useful to get Form 8332 signed for the noncustodial parent from the custodial parent.

To find this form in TurboTax, follow these steps:

• From the left menu, select Federal>
• Other Tax Situations (third tab across the top)
• Scroll down to All Uncommon situations and find Other Tax Forms and click Show more
• Find Revocation of release of claim to exemption for child of divorced or separated parents and click Start to begin the process

[Classy01]

I am always trying to do the right thing where taxes are concerned. If federal law trumps state law, why would a state judge rule on this or have the custodial parent give up the right to claim the child by signing the 8332? If an order that states you should submit the 8332 form every other year (2017 order?) and you don't do that, how does that look to a state judge?  Additionally, if the "qualifying child" isn't really  "qualifying" for my ex husband since he has much less than 50%, why should I be obligated to forgo this much needed exemption.  It is hard to know what the right thing to do is if the state judges and federal judges are not in agreement with one another, the rules, or the federal regulations. Any additional information you can provide is greatly appreciated. 

[Hal_Al]

@Classy01 - Your situation appears to be clear cut and the "right thing" is equally clear. The family court has ordered you to give the other parent form 8332, so you should do. 

The statement " If federal law trumps state law" is misleading.  It doesn't mean the family court order is negated. It only means the IRS is not obligated to enforce it. 

Even after giving the non-custodial parent the "exemption" (and child tax credit), you still get the claim the EIC, HoH, and DCC.  Just be sure you let him know, you're claiming those (legally, not violating the court order) so that he doesn't try to also.

[Empires2build]

You can file a contempt of court on them though. That is what my husband and I did. The divorce said he could claim one child and she continued to claim her after a second amended decree and SHE STILL continued to claim her. We are waiting to see what they are going to do because we had to mail another return in when they got electronically rejected. We mailed a copy of the decree that was ordered in 2015. Nevertheless it's a contempt charge

[Empires2build]

Yes you can but why? Mailing a return would be just as efficient and time I believe.  I have overnighted my mail in filing before. It's pretty quick

[Bigtonyd]

My question is this. My ex-wife and I got divorced back in 2004. In our custody agreement it says that we alternate years to claim my daughter on our taxes. For tax year 2019, my daughter turned 18. My ex-wife went and claimed her on her taxes, even though it was my year to claim her.  She said because my daughters over 18, and she is the custodial parent. That she gets to claim her. And then our agreement ended when she turned 18. any truth to this? What is my recourse?

[Hal_Al]

@Bigtonyd 

That's not a tax question; it's a legal question.  There's nothing in the tax code that addressees your question.  It's an interpretation of the wording in the document.

But, be advised that the issue of emancipation enters the picture when the child reaches emancipation age for her state. An emancipated person is not longer in anybody's "custody". But, the mother can continue to claim the child as a qualifying child, for tax purposes, because the child still resides with her. But, the father not only needs the mother's permission (just verbal), he needs to meet the dependent support and income test, as well.

[THOR02]

What can I do my mom claimed my daughter and now I cant she luves wit me

[Hal_Al]

@THOR02 

A child can be the “qualifying child” dependent of any close relative in the household*. If you live with your mom, it may be better if she claims your child.  The smart thing to do is prepare returns both ways and see which way the family comes out best. This tool may be useful:  https://turbotax.intuit.com/tax-tools/calculators/taxcaster/?s=1

If it is decided that you will claim the child, you can no longer e-file and will have to send in a paper return. Your mom will have to file an amended return, but you do not have to wait for her to do so. 

If you can't agree, on who will claim the child, then you, as the parent, have the higher right to claim the child.

The previous answer, in this thread is repeated here:

If someone else claimed your child inappropriately, and if they file first, your return will be rejected if e-filed. You would then need to file a return on paper, claiming the child as  appropriate. The IRS will process your return and send you your refund, in the normal time. Shortly (up to a year) thereafter, you'll receive a letter from the IRS, stating that your child was claimed on another return. It will tell you that if you made a mistake to file an amended return and if you didn't make a mistake to do nothing. The other party will get the same letter you did. If one of you doesn't file an amended return, unclaiming the child, the next letter, from the IRS, will require you to provide proof. Be sure to reply in a timely manner.

*If the parents of a child can claim the child as a qualifying child but no parent so claims the child, no one else can claim the child as a qualifying child unless that person's adjusted gross income (AGI) is higher than the highest AGI of any of the child's parents who can claim the child.