@Rachel14 wrote:
This makes sense. How does it work when IRS letter is sent to everyone that claimed a child wrong or right and an identity theft form is submitted?
In general,
If more than one person claims a child on their tax return, and the IRS sends letters, then if you are the non-custodial parent and can't prove you had custody more than half the nights of the year, your only hope is to have the signed form 8332. If you are the custodial parent, you need to be able to prove that the children lived in your home. You don't need a form 8332 to prove that, and if you had signed a form 8332 for the other parent, you have already lost before starting. To prove the children lived in your home more than half the nights of the year, send the IRS copies of anything that will prove that. Some examples might be:
1. Letters from the children's doctor or school about them, that were sent to your house (showing that the doctor or school district thinks you have custody most of the time)
2. Messages and emails from the other parent arranging pickup and drop-off -- if you can show the IRS that the other parent picks up the children every other weekend (or fails to pick up the children), then you have gone a long way to showing that you had custody more than half the nights. Here, a diary or calendar may be useful, if you keep it in real-time, and back it up with proof. Your recollections 2 years later will not be as convincing as a day planner you kept at the time.
3. The IRS might look at a custody order showing you have custody most of the time, but since the IRS is not bound by custody orders, this is just one more factor that may help prove your case.
4. Photos and social media posts showing the children doing activities in your care.
5. If you live a fair distance from the other parent, then receipts from your babysitter or day care provider showing that the children were in care during the day close to your home, would also help to show that they were in your care over night.
6. Anything else you can think of showing that the children lived with you.
The identity theft affidavit doesn't prove anything. it just shows that you are making the same accusation in a different way (the children lived with you and were claimed by the other parent) -- it's not proof of the accusation. The offices that process the two different issues may not even talk to each other.
In your specific case I must direct you back to your attorney. You seem to be taking steps to ensure that the other parent can't claim the children even though the judge ordered you to allow that. (Even though the order violates federal tax law, the local judge has a lot of power unless you can successfully appeal to a higher court.). I suppose that as long as you don't claim the children as dependents, you could tell the court that you aren't interfering with the other parent's claim, and the IRS is just following their own rules. But I would be very cautious here and not do anything without the advice of your attorney.
