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?

[xmasbaby0]

@Amber1108 When you mail a tax return (or anything else) to the IRS use a mailing service like certified mail with tracking so that you will know it was received.   The IRS will only accept one e-filed return with the child's Social Security number on it, so if your ex files first, it blocks you from e-filing.   Your only recourse is to file by mail.

You are not required to say that there is a signed 8332 if there is not such a signed agreement.   Mail your return and let the IRS sort it out.   

If you mailed your 2020 return that claimed your child and have not yet received your refund:

To call the IRS:IRS:  800-829-1040  hours 7 AM - 7 PM local time Mon-Fri

Listen to each menu before making the selection.

First choose your language. Press 1 for English.

Then do NOT choose the first choice re: "Refund", or it will send you to an automated phone line.

Instead, press 2 for "personal income tax".

Then press 1 for "form, tax history, or payment".  

Then press 3 "for all other questions."

Then press 2 "for all other questions."  It should then transfer you to an agent.

TAX ADVOCATE

At the following IRS website, find the USA map and click on your state, and it will give you the number of your area's IRS Taxpayer Advocate.

http://www.irs.gov/uac/Contact-a-Local-Taxpayer-Advocate

Also see this article for more info on how the Taxpayer Advocate Service works::
http://www.irs.gov/taxtopics/tc104.html

[Amber1108]

I paid them to help and to file. Since I can't and they won't help me with a person. Then yes, they are part of my problem. Also, I tried to take him off and refill and the want to charge me again. So, TurboTax should have a live person to help and they shouldn't charge me again. I won't be using them and I have used them for a decade. I will tell everyone else to just go pay for it or do it on the government sites because the service won't get you anything special paying for it and will only add in new fees and headaches. 

[AkinaLO]

You are welcome to contact customer support directly to address your concerns over the phone.

What is the TurboTax phone number? - Intuit     

[rapdevils]

Yes the custodial parent thing is true HOWEVER, i don’t know what is said in your divorce papers and in your custody agreement, what I do know is that if the children spend 50/50 with both parents, I’m going to assume you have a 50/50 agreement which if that is the case there is NO custodial parent, neither one of you has more rights over the other and if it states in your custody agreement that you will claim said child every year and the other parent will claim the 2nd child every year the person claiming both is in violation of a court order. And that will be the only way you can try to make it right, unfortunately. When it comes to the IRS. There’s nothing you can do with them.

[Opus 17]

@rapdevils 

Absolutely, 100% untrue. The IRS does not follow a custody order. The IRS requires that you count the number of nights where the child lived with each parent. In any year that is not a leap year, it can’t be 50-50 because there is an odd number of nights.

The tax code is federal law which supersedes state law and state court orders. The IRS follows actual physical custody because it is not the IRS’s responsibility to judge how much support a parent paid, or whether a parent met the conditions of a custody order such as taking custody a certain number of days or making certain child support payments. None of that matters on your federal tax return, only which parent the child lived with more than half the year.  In a leap year, and in the event the child lived with each parent exactly half the nights, the first IRS tiebreaker is which parent has a higher income, not what the state court custody order says.

All this is written down in IRS publication 501 and from that you can follow to the regulations and the tax code.

https://www.irs.gov/pub/irs-pdf/p501.pdf

[rapdevils]

@Opus 17 

i never said the IRS follows custody orders… Filing with the court is the only option should it be stated in the custody papers that one parent claim a specific child one year or every year whilst the other parent claims the 2nd child every year OR the same child opposite years… this is what I said earlier because if this is specifically stated in the court orders, then by the other parent not following it and claiming both children the one child every year they are now in violation of a court order and in order to put a stop to it filing with the courts is the only way BECAUSE the IRS does not care about court orders. But the judge will… 

[choffmann2021]

I have a few questions unique to my experience--

My husband has two children from a prior relationship and one with me. They have 50/50 custody but he has them every Wednesday, Thursday, and every other weekend. If you count the days in 2021, he had one extra overnight (not counting the additional days she refused to pick them up on time). His AGI is higher than hers, which resulted in him paying child support and covering them on insurance despite their 50/50 arrangement (there is no court order, they are in the process of establishing that now). According to IRS rules, he has legal right to claim both children due to physical custody correct? 

Next question, he has recently quit his job to stay home due to the number of children we have in daycare between the two of us. He continues to have 50/50 custody, pays child support, and the kids are under my insurance. For next year, will our joint AGI work as a tiebreaker or just his portion of income for the year? 

[Opus 17]

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@choffmann2021 wrote:

I have a few questions unique to my experience--

My husband has two children from a prior relationship and one with me. They have 50/50 custody but he has them every Wednesday, Thursday, and every other weekend. If you count the days in 2021, he had one extra overnight (not counting the additional days she refused to pick them up on time). His AGI is higher than hers, which resulted in him paying child support and covering them on insurance despite their 50/50 arrangement (there is no court order, they are in the process of establishing that now). According to IRS rules, he has legal right to claim both children due to physical custody correct? 

Next question, he has recently quit his job to stay home due to the number of children we have in daycare between the two of us. He continues to have 50/50 custody, pays child support, and the kids are under my insurance. For next year, will our joint AGI work as a tiebreaker or just his portion of income for the year? 

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If the two children by prior relationship slept in your home 183 or more nights—regardless of the reason—then you are the custodial parents for 2021 under the tax laws, and you are allowed to claim the children as dependents without requiring form 8332 from the other parent.  The AGI of the parents doesn't enter into it, nor does the total amount of support each parent paid, just the number of nights.

Notice I say "you are allowed" without making a difference between you and your spouse, because a step-parent has the same legal right to claim a child as a biological parent.

Where you need to have caution is with regard to any court order regarding custody and claiming a dependent.  If there is a court order that says, for example, you will alternate years, and this is the other parent's year, you may be in violation of the order if you claim the children.  The IRS will accept the claim, but the other parent could ask for the state court judge to take action against you.  Also, if the other parent also claims the children as dependents, you will need to prove you had custody more than half the nights.  So make sure your documentation is in order, whatever proof you can come up with to show that the children lived in your home more than half the nights of the year.  (In a regular year with 365 days, 183 or more nights is more than half and 182 or less is less than half.)

For 2022, the same principle is true.  The custodial parent is where the children lived more than half the nights of the year.  The amount of support each parent pays is never a factor, and the AGI of the parents is only a tiebreaker if the children lived exactly half the nights with each parent, which is generally impossible if it is not a leap year.  

[choffmann2021]

They do not have a custody agreement at this time and are waiting for court. She filed for child support through the Family Support Division which does not rule on taxes nor custody. We have the transcript from their hearing in July where she agreed that he has the children every Wednesday, Thursday, and every other Friday-Sunday.  I'm hoping that along with statements from our childcare provider is sufficient in determining physical custody. 

[Hani92]

I was reading comments on this post, but the situation we have is slightly different so I couldn’t find the right answer. My husband lived with his ex in 2018 and they separated in December that year. They have two kids together and they were never married. After separation prior to any court order his ex filed taxes for 2018 and claimed both of the kids. My husband thought that he couldn’t do anything about it so he just filed taxes without claiming dependents. According to federal tax laws, they lived together with the kids and he had higher AGI so he would have the right to claim the kids. Could he amend his return for that year now or is that something that should be taken to court? 

[Amber1108]

I do not know for sure, but I believe you only have 2 years to amend for a situation like that. I would definitely look into it further. The laws have changed quite a bit and I really barely know how to even file anymore. They have over complicated everything.

I do know someone had a similar situation and she ran out of time to amend waiting for an answer. Worth a shot. 

[Hani92]

Thank you for your response!

I actually looked into the time frame and it’s three years since you filed. So we still have some time to amend, but I want to make sure first that we are doing the right thing. 

[Opus 17]

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@Hani92 wrote:

I was reading comments on this post, but the situation we have is slightly different so I couldn’t find the right answer. My husband lived with his ex in 2018 and they separated in December that year. They have two kids together and they were never married. After separation prior to any court order his ex filed taxes for 2018 and claimed both of the kids. My husband thought that he couldn’t do anything about it so he just filed taxes without claiming dependents. According to federal tax laws, they lived together with the kids and he had higher AGI so he would have the right to claim the kids. Could he amend his return for that year now or is that something that should be taken to court? 

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The first tiebreaker would be who had custody the greater number of nights.  If he moved out December 30, he would have 364 days but the other parent would have 365.  The higher AGI only comes into play as a tiebreaker if they had physical custody the exact same number of nights.  This is theoretically possible, since they split at the end of the year, if they shared custody after the split, but would not be the case if the kids stayed with the mother while things were sorted out.

In the event the number of days was exactly equal, he could file an amended return and claim head of household with dependents or single with dependents.  The IRS will send letters to both parents asking them to prove their claims.  Could your husband prove he had physical custody of the children an equal number or greater number of nights than the other parent?

[Amber1108]

That is awesome. Seems like it was his right to claim, but I am not an expert. I asked my own question on here. I just keep getting other people's questions now and yours was the first one I knew something about the time limit. 

I need to let my friend know 3 years because I am certain she told me she had 2 and that means she may have time. Thank you!

[Hani92]

I’m glad I was able to help!