My sons father keeps claiming my son on his taxes without my permission, he doesnt live or support him like he is supposed to. What can I do??

[DoninGA]

Closing this post to further comments.

[macuser_22 · Accepted solution]

Assuming that the child lives with you and you meet all of the requirement to claim the child as a dependent.

Then unless you have a pre-2009 divorce decree that specifically states that he can claim the child with no conditions attached, or you have previously given him a signed 8332 form releasing the child's exemption for all future years and you have not revoked that in writing, then unless you give him a current 8332 for releasing the child's exemption (dependent) to him, he cannot legally claim the child since he must attach that 8332 form to his tax return to claim if he did not physically live with the child more than 1/2 the year.

What you can do is:

1) e-file before he does and claim the child.

2) if he e-files first then your e-file will reject because your son's SSN has already been used.

3) If that happens, then print and mail your return claiming your son.

4) The IRS will pay both refunds, but within a year (up to two years possibly) both parents will receive a letter asking if the child was claimed in error.   After you answer that letter that the child was not claimed in error then if the other taxpayer does not amend, the IRS will follow up with a 2nd letter asking for more details.   Simply provide the information that they ask for to supports your claim that the child lived with you and you did not release the child's exemption.  (Don't ignore the letters or you will loose).

5) The IRS will determine which tax payer gets to keep their refund and which must pay it back along with interest and possible penalties.    The parent that the child lived with will almost always win.

[nadirah-salam]

Okay my Son dad just told me he has filled our son on his taxes without my consent no permission my Son resides with me ETC

[nadirah-salam]

And he goes on and tells me he pays child support so he did that PURPOSELY

[macuser_22]

If a dependent that you are entitled to claim has already been claimed by another taxpayer, your e-filed return will
reject since the child's SSN has already been used (either intentionally or in error such as a mistyped SSN).

Your only recourse is to file a correct tax return, claiming what you are entitled to claim, then print and mail the return.

The IRS will process both returns and pay any refunds.   Shortly (within a year) the IRS will mail letters to both taxpayers asking if their tax return was filed in error and suggesting that they amend if they improperly claimed the child.

If neither taxpayer amends, the IRS will send a second letter asking for each taxpayers proof that they are entitled to claim the dependent, such as proof that the child physically lived with them more than half the year.   School records, child care records, household receipts, medical bills, etc., that show that the child lives with you should be retained.

The IRS will evaluate each taxpayers claim and award the dependent to one taxpayer, the other will have to payback any refund received plus interest and possible penalties.   The parent that had physical custody usually always wins.

Do not ignore the letters or you will loose.

[SweetieJean]

1. Have your attorney write him a "cease and desist" letter. 2. Notify the IRS Fraud division. 3. File a police report. 4. File your own return as early as possible.

[SteamTrain]

And if your e-file is rejected because of the father e-filing ahead of you....claim the son as a dependent anyhow...and print-mail it in.

Once the IRS sees the conflict, they will send both of you letters asking you to support yoru claim.   The IRS doesn't know who the son actually lived with all year when there are competing claims.  Keep as many documents backing up yoru claim as possible. School records and address of record,  medical exam documents/bills showing address..etc.

[Opus 17]

I'm not convinced about #2 and #3 above.

@mj6974 the answer is simply this: If you can not e-file because the father e-filed first and you are getting a block on the child's SSN, simply print the return and file by mail.  You will get the refund in 4-6 weeks instead of 2 weeks, but it will still come.  Then, a few months later, the IRS will send letters to both parents to investigate the duplicate dependent claim.  You will respond with the information that the child lives with you, and offer to provide proof.

You should plan to gather that proof now -- could be things like emails and text messages documenting visitation, a letter from the school documenting where the bus picks up and drops off your child, photos of family events, or any other proof that will show the child lives with you.

Note that the IRS will not care that the other parent does not pay support, that's not part of the IRS rules or formula for deciding who is allowed to claim the exemption.  The key rule is, the exemption goes to the parent where the child lives the most.  So be ready with proof.

If you did not claim the exemption in past years because of this same issue, you can amend your tax return to claim the exemption and extra refund, and the IRS will launch the same investigative process for those prior years.  You can go back as far as the 2012 tax year (which was filed in early 2013).

[Hal_Al]

If somebody else in your household, e.g. the child's grandparent, wants to claim the child, instead of you, the rule is the same: they just file a paper return*, claiming the child and the IRS sorts it out later. The grandparent that lives with the child has a higher priority claim than a father that does not live with the child.

*including amended prior year returns if appropriate.

[Hal_Al]

There is a way to split the tax benefits. For future negotiations with the other parent (and maybe even for this & prior years) 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 exemption to him.
Ref: <a rel="nofollow" target="_blank" href="http://www.irs.gov/publications/p17/ch03.html#en_US_2014_publink1000170897">http://www.irs.gov/publi...>

[SweetieJean]

It sounds like Dad has been doing this illegally for several years, which is why I suggested # 2 and #3 above.

[quiesha1983]

well im in the same situation but the only thing is im not filing taxes but my son do live with me and tooking care of by me his dad only contribute a little and its not enough plus child support but he didnt ask can he use him as a dependent he took it upon him self what should i do because now im being threating cause he think i want money from him which im obligated to have please help its become a big issue

[quiesha1983]

i never signed anything stating he can use him every year

[Opus 17]

@quiesha1983 :
I can't speak to the issue of threats, you may want to see an attorney, social worker or law enforcement.

Purely on the tax issue, if the child lives with you more than half the year (which means, spend more than 183 nights living in your home) then you are entitled to claim the child as a dependent.  If you are single and pay more than half the cost of keeping up the home, you can also use the head of household filing status. And depending on your work, you may qualify for EIC.

If you are blocked from e-filing because the other parent already e-filed and claimed the child as a dependent, you can print your return and mail it to the IRS.  This will delay your refund by about 2 weeks or so compared to e-filing, so it's not so bad.  Around 6-8 months from now, the IRS will send a letter to you and the other parent notifying you that you both claimed the dependent and one of you has to take the child off.  Since you are entitled to the child dependent, you do not need to do anything.  If the other parent also does nothing, then the IRS will follow up with a second round of letters asking for proof of where the child actually lived.  So, you should begin to collect your proof just in case.  This could be dated photos, Facebook and instagram posts showing the child living with you; a letter from the school about where your child got picked up by the bus every day; copies of emails and text messages about visitation and custody that can be used to create a calendar showing where your child lived.  With this proof, the IRS should let you keep the dependent and will take it away from the other parent, and will owe repayment of taxes with interest, maybe a penalty, and maybe be barred from claiming EIC for up to 10 years.

[ChristopherT34]

My question is I'm the father but i get my kids every other weekend's. I pay child support, and have waa taking care of my kid's the most even they don't live with me as much. My ex has not worked most of the year but i have, and i have proof she waa living with me and still getting child support as well. We both carried them on our taxes. I didn't know anything about a form needed to be signed by her. Never see that in our court order i needed to have that done. I also have text that i would claim them on my taxes, but she got made about money and was gonna let someone else carry them for money. It's in the text i have. Now she saying you carry them but i can see how because she didn't have a job. How will this play out with both carrying them on our taxes. I also have police reports and other papers for when she was not letting me see them but still paying child support.