Wrong parent claiming child on taxes.

[Videogamer123]

Per my parenting agreement, it is my year to claim my child on my taxes. My x is telling me he is going to claim my child. We have 50/50 custody, so my child spends equal time at each parent’s house over the course of the year. What will happen with my tax return if he files first? What do I need to do to ensure I can claim my child and not get in trouble with the IRS?

[DoninGA]

If the other party filed first with the child as a dependent, then you will have to print and mail your tax return if you are claiming the child as a dependent.

The custodial parent that can claim the child as a dependent, as far as the IRS is concerned, is the one where the child lived with for over 183 nights out of the year.

[xmasbaby0]

One of you had the child for more nights.   Who had the child for at least 183 nights?   The parent who had the child for at least 183 nights is the custodial parent.

Are you the custodial parent?  Do you have an agreement with the other parent to allow the other parent to claim them--due to divorce or that you live apart and share custody?  Did one of you sign a Form 8332?

If there is a signed 8332 then the custodial parent retains the right to file as Head of Household, get earned income credit and the childcare credit.  The non-custodial parent gets the child tax credit for children under the age of 17.  If the child is 17 or older the non-custodial parent gets the $500 credit for other dependents.

If you and the other parent have a signed agreement, you need to indicate in MY INFO that you have such an agreement.

As far as the IRS is concerned, the custodial parent is the one with whom the child spent the most nights during the tax year--at least 183 nights.

If you are the parent who can claim the child and someone else files before you and claims the child, your e-file will be rejected.    You can file your return by mail and let the IRS sort out the duplicate use of the child's SSN, or you can get an IP PIN to allow you to e-file and claim your child.

WAYS TO PROVE TO THE IRS THE CHILD LIVED WITH YOU 

https://www.irs.gov/pub/irs-pdf/f14815.pdf

GET IP pin in order to e-file if your dependent’s SSN was claimed on another return

https://www.irs.gov/newsroom/irs-takes-steps-to-help-prevent-refund-delays-by-accepting-duplicate-de...

https://www.irs.gov/identity-theft-fraud-scams/get-an-identity-protection-pin

[Videogamer123]

Thank you, how will the IRS proceed to decide who will get to claim the child? If I file a contempt of court motion, will the IRS consider the judges decision if it’s in my favor? 

[Videogamer123]

I did not sign form 8332. We have a custody agreement that states that I am to claim the child for this year. There is no way for us to tell at this point who had the child for 183 days. The timing is very equal. 

If I file a contempt of court motion, will the IRS consider the judges decision? 

[DoninGA]

---

@Videogamer123 wrote:

If I file a contempt of court motion, will the IRS consider the judges decision? 

---

No, the IRS is not bound by a family court judges ruling.  They are bound by the tax code.

[LindaS5247]

As XmasBaby0 and DoninGA mention above, as a general rule, whoever the child lived with for more than half the year can claim the child as a dependent.

The IRS generally disregards court orders and awards the child's exemption to the custodial parent (child lived with them most nights). The IRS follows federal tax law, which dictates that the custodial parent has the right to claim the child, unless a Form 8332 is signed. See Claiming a child as a dependent when parents are divorced, separated or live apart.

The IRS will use the residency rule to determine who can claim the child if both parents claim the child. This rule says that who has the child the most nights can claim the child. If the number of nights are equal, the parent with the higher adjusted gross income will be allowed to claim the child as a dependent.

The IRS will send letters to both parties requesting proof of residency (school records, medical records).

Click here for Rules for Claiming Dependents on Taxes

Click here for Claiming a child as a dependent when parents are divorced, separated or live apart

Please return to Community if you have any additional information or questions and we would be happy to help.