I'm the custodial parent, noncustodial didn't file 8332

[Ashirey79]

Hi, I'm hoping someone can help me with this. My ex husband and I divorced in 2017. I claimed the kids on my 2017 and 2018 tax return, then I was unemployed so I told him he could claim them. He never asked me to fill out 8332 for the last two years, so I can only assume he's filing as if the kids lived with him, even though they didn't. I think he assumes since he pays child support that that means he's entitled to claim them without any additional forms. I plan to claim them for this coming tax year since I am employed again, but in the meantime, I am applying for a tax credit property apartment and now I'm concerned that I have no proof that they lived with me this entire time. Obviously this is something I'll have to ask the apartment people, and I am going to take my 2017 and 2018 returns with me, plus school records showing they've lived with me. I'm just wondering what kind of liability this could cause, or would the IRS not even notice?

[Critter-3]

Unless you both tried to claim the same kids the IRS will not notice anything.    As for the apartment situation ... who claims the kids on their return is immaterial to where they live ... they cannot dictate how you can file your return. 

[Ashirey79]

I know they can't dictate that, I'm more concerned about them saying I don't have proof that they live with me since he apparently is pretending otherwise.

[Mike9241]

I'm more concerned about them saying I don't have proof that they live with me since he apparently is pretending otherwise

who are they? the IRS?  if the IRS inquires then you should be able to provide pictures of the kids bedroom with them in it, school records, medical bills you paid for them, affidavits from neighbors, 

[rjs]

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@Ashirey79 wrote:

I'm more concerned about them saying I don't have proof that they live with me since he apparently is pretending otherwise.

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How would the apartment people see your ex's tax return? If they don't see his tax return, it doesn't matter what he puts on it.

Claiming the children on your tax return doesn't prove that they live with you. You could be the noncustodial parent claiming them. Not claiming the children on your tax return doesn't mean that they don't live with you. You could be the custodial parent but allowed the noncustodial parent to claim them, which is, in fact, what happened. Hopefully the apartment people understand all of this. So ask them what kind of proof they want.

[Critter-3]

Ok… tell the people who need to look at your bloody tax return that the other parent is claiming the children as dependents per the IRS rules and regulations. The fact that they don’t show up on your tax return is immaterial since they do live with you. As mentioned in the other answer, show them pictures of the kids beds with them in it, paid bills for them with the Apartment address on them, affidavits from the neighbors that see them come and go, etc. etc. etc. get creative.

[Carl]

The apartment situation is not really a tax issue, as much as it may be a legal issue. So I'm not going to address that. You may wish to seek legal counsel on that front.

For tax purposes, the IRS has their own set of rules for who can claim dependents when it comes to separated or unmarried parent's no longer living together.  It's all covered in great detail in IRS Publication 504 at https://www.irs.gov/pub/irs-pdf/p504.pdf

[Hal_Al]

If someone else claimed your child inappropriately, and if they file first, your return will be rejected if e-filed. You would then need to file a return on paper, claiming the child as  appropriate. The IRS will process your return and send you your refund, in the normal time. Shortly (up to a year) thereafter, you'll receive a letter from the IRS, stating that your child was claimed on another return. It will tell you that if you made a mistake to file an amended return and if you didn't make a mistake to do nothing. The other party will get the same letter you did. If one of you doesn't file an amended return, unclaiming the child, the next letter, from the IRS, will require you to provide proof. Be sure to reply in a timely manner.

Winner gets the tax benefits; loser gets to pay the IRS back with penalties and interest.  The custodial parent almost always wins. The IRS goes by physical custody, not legal custody. The non-custodial parent can only claim the child as a dependent if the custodial parent gives permission (on form 8332) or if it's spelled out in a pre 2009 divorce decree.   

Note: you don't try to submit any proof that the children live with you, when you file your tax return.  That comes later.

References:

https://www.thebalance.com/claiming-same-dependent-audit-risk-3193030 

http://taxes.about.com/od/dependents/qt/Dependents-Audits.htm

www.eitc.irs.gov/EITCCentral/f886-h-dep.pdf 

https://turbotax.intuit.com/tax-tips/family/what-happens-when-both-parents-claim-a-child-on-a-tax-re...

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There is a way to split the tax benefits. For future negotiations with the other parent (and maybe even for this year) the following info may be of use:

 There is a special rule in the case of divorced & separated (including never married) parents. When the non-custodial parent is claiming the child as a dependent/exemption/child tax credit; the custodial parent is still allowed to claim the same child for Earned Income Credit, Head of Household filing status, and day care credit. This "splitting of the child" is not available to parents who lived together at any time during the last 6 months of the year; then only one of you can claim the child for any tax reasons. The tax benefits may not be split in any other manner.

Note in particular that the non-custodial parent can never claim the Earned Income Credit, Head of Household filing status or the day care credit, based on that child, even when the custodial parent has released the dependency to him.

 So, it's good idea to let the other parent know that you will be claiming those items, as many first time divorced parents are not aware of this rule and may try to claim those items, which will cause the IRS to send out letters.

Ref: https://www.irs.gov/publications/p17#en_US_2017_publink1000170897

Scroll down to "Children of divorced or separated parents (or parents who live apart)"

[Opus 17]

Let me try and make a few quick points, some of which have already been made but at least one of which is new. 

1. On your 2021 tax return, just claim your children.  If they lived with you more than half the nights of the year, you don't need any special forms or paperwork.  If the other parent doesn't claim them, the IRS won't do anything special.  If the other parent also claims them, you may need to show the IRS proof of where the children lived. The IRS would send a letter to investigate and you would send your proof in reply to that letter; don't send proof unless you are asked.

2. By not filing a 2020 tax return, you missed out on $1100 of stimulus payment/recovery rebate per child that you could have gotten for your children, even though you were not working.  (Unless you already got a stimulus check for the children.).   You could file a return to get those credits, but it would cause the IRS to start investigating why you and the other parent both claimed the children.  (The other parent got that credit and would have to pay it back if you can show the children lived with you, and you did not give the other parent a form 8332.)

3. By not giving the other parent a signed form 8332, you were facilitating his possible tax fraud. He might have been able to qualify for EIC or head of household status that he would not be eligible for if the children did not actually live in his home more than half the nights of the year.  This will probably not cause you any grief, and the IRS is too busy to investigate unless you filed a duplicate dependent claim for those tax years, but it is something to bear in mind. 

4. We can't really help you with your landlord since it is not a tax matter, but there are legitimate cases where a parent might not claim the children who live with them as dependents.  If you are trying to get a rent subsidy based on family size, you will have to discuss with the state or city agency, what other proof might be acceptable.