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?

[Hani92]

Thank you for your response. 

I don’t have all the details on when they split and if they were sharing placement. If we assume that he had physical placement how do you prove that? Or how does she prove that he didn’t have placement? 

[Opus 17]

@Hani92 

The amending deadline is three years from the original deadline for returns filed on time (so April15, 2022 for a 2018 return filed on or before April 15, 2019) but two years after the date of filing for a return filed late.  

I don’t know how he would prove where the children actually physically lived in December 2018.  That’s his problem.  The IRS is unlikely to award him the dependents and take them away from the other parent unless he has better proof than she does that the children lived with him for more days after the separation than they lived with her.  

[Hani92]

Ok, I will look into that further. If amending return wouldn’t change anything would going to court help? Because later that year they went to court and the court order says that my husband claims one child and she claims the other child, but she also claimed both of them for the tax year 2019 which resulted in her getting all the stimulus payments for both of the kids during COVID pandemic. Is that something to be resolved at court? 

[Mommybaden]

If I am the custodial parent and am the one who gets the EIC  credit but my ex husband falsely claimed that he has our son 7months or more when he only has him 72 days out of the year how do I go about finding a form to file to take to court or sorry for IRS to give me what is owed? My return has been rejected 3x now because he filed first and falsely claimed how long he has Tyler out of the year. He refuses to sign an amendment form or any other forms so I'm I'm sure how to do it when he's refusing.... 

[xmasbaby0]

@Mommybaden

Someone else claimed my dependent and my return was rejected

If someone else claimed your dependent already, then your e-filed return will be rejected.  Print, sign and mail your own return which claims your dependent.  Mailed returns are processed differently by the IRS.  It will take some time (maybe even up to a year) but eventually the IRS will contact both parties and sort out who could rightfully claim the dependent.  The person who wrongfully claimed the dependent will face repayment of refund $, plus penalties.

When you mail a tax return, you need to attach any documents showing tax withheld, such as your W-2’s or any 1099’s.  Use a mailing service that will track it, such as UPS or certified mail so you will know the IRS/state received the return.

[steelcyc]

my situation is a very odd one my ex dont work we r still married she had a bunch of false legal crap hemming me up that was lies and took my kids shes 4hrs away my point is is she doesnt work and my support provdes like 100% of the household support she dont work but i think that she let her brother claim them but she lives on her own so if i was payin spousal and child support which is half my checks shouldnt i be able to claim them

[Opus 17]

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@steelcyc wrote:

my situation is a very odd one my ex dont work we r still married she had a bunch of false legal crap hemming me up that was lies and took my kids shes 4hrs away my point is is she doesnt work and my support provdes like 100% of the household support she dont work but i think that she let her brother claim them but she lives on her own so if i was payin spousal and child support which is half my checks shouldnt i be able to claim them

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If you are still married, you have the option of filing as married filing jointly, in which case you claim the children on the joint return since at least one of you lived with the children.  However, I don't recommend that if your spouse has legal or financial trouble.  You will best protect yourself from those troubles if you file as married filing separately. 

If you did not share a home with the children for at least 183 nights of 2021, you can't claim them as dependents, even if you pay child support.

If your spouse lives with her sibling and the children share the same home, the sibling can claim the children as dependents if his income is more than your spouse's income.  If they do not share a home, then the brother may not claim the children as dependents unless he pays more than half their total financial support.  Your child support payments might or might not make this impossible, but it depends on the total facts and circumstances.  

There is a way to report suspected tax fraud.   But if the children did not live with you, it will be impossible for you to get any benefit from your complaint.  You won't be allowed to claim the children, even if the brother is audited and denied.  So a complaint could only benefit you in the sense that you punish someone else you don't like.  Here is a link.

https://www.irs.gov/individuals/how-do-you-report-suspected-tax-fraud-activity 

[W_Wolf]

My wife and I are in an interim custody agreement, but she left during the second half of the year. I claimed before she did because she was not open for negotiation even though I felt was fair considering I had the higher income for the year. Is this going to be tricky to amend or is there a clear wrong answer? 

[Opus 17]

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@W_Wolf wrote:

My wife and I are in an interim custody agreement, but she left during the second half of the year. I claimed before she did because she was not open for negotiation even though I felt was fair considering I had the higher income for the year. Is this going to be tricky to amend or is there a clear wrong answer? 

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You say your wife left during the second half of the year.  I assume there were kids and she took them with her.

For 2022, both you and your wife qualify to claim the children as dependents, because the children lived with you more than half the year (in the same home). If you agree, either one of you can claim the children and if there are more than one, you can split them any way you like.  If you can't agree, the first tiebreaker is where did the children live the greater number of nights.  For example, if your wife left Sept 1 and you had the kids every other weekend after that, then you had custody for about 250 nights but your wife had custody about 320 nights.

If the number of nights that you each had custody turns out to be exactly equal, then the second tiebreaker is whose income is higher.

If you have more than one child together, maybe you split them this year.  But if your wife is demanding that she claims the child or all the children, and if she had custody more nights than you, then she would win if there was an IRS investigation.  It might be simpler at this point to amend your return, remove the children, and pay back any credits.  Amending is fairly easy, just don't file your amended return until your original return is processed and any refund paid.  There will be no interest or penalties for having to repay part of your refund as long as you file the amended return by April 18.