Me and my ex had a court settlement that gives her legal custody over our son, but we split parenting time 50/50. Our parenting plan has provisions for different holidays, so in realty the amount of overnights with each parent is slightly different every year. It was stipulated that we will alternate every year which of us "gets" 183 overnights for the purpose of claiming him as a dependent. However I later found out that she decided to claim our son for the year when she only had 182 overnights per our settlement on the basis that in reality he spent more overnights with her due to holidays. So we both ended up filing him on our taxes and most likely will get flagged by the IRS.
So here are my questions: Should I just file an amended return instead of waiting for an audit? If we get audited will IRS pay any attention at all to our court order? If not will they at least consider it as a mitigating factor for claiming my son in relation to penalties? We have a shared parenting time calendar on a court ordered platform. Would this serve as a proof for the IRS with whom child spent most overnights? Any other thoughts/suggestions on the matter will be appreciated..
