Can I claim my son who was only with us for 4 months before he passed away? We were his foster parents and 100% responsible for him from May 4th to August 21st.

[SweetieJean]

Dd he live with someone else from Jan 1 to May 3?

[beccaboodimples2]

No. He was born April 10th. He was taken out of his biological mothers care immediately. He was in the hospital until April 21st. He was born with Tetralogy of Fallot. He was placed in his grandmother's care until May 3rd when DSS placed him in ours. Technically he was my husbands little brother but emotionally and mentally he was our son. He passed away August 21st and judge gave us full custody on August 22nd

[Carl]

This may have just got more complicated now.
Understand that when it comes to dependents, the IRS has their own rules. Only a federal judge can over ride those rules. Since federal judges don't deal with custody cases, what a lower level judge may say or do holds no weight with the IRS and they are not obligated in any way to follow that judges ruling.  
So when you were awarded custody, means nothing to the IRS. It all has to do with physical presence.
"He was taken out of his biological mothers care immediately"
And placed in your care immediately? The fact he was in the hospital for 11 days after being removed from the biological mother's care does not mean he was not placed in your care immediately.
"He was placed in his grandmother's care until May 3rd "
Placed by whom? DSS or you?  Did the newborn physically live with the grandmother from Apr 11 to May 3rd?
I don't know if it matters, but does any paperwork exist on who the legal guardian is after the child was removed from the biological mother's care? If so, what paperwork? It may not matter. But would like to know just to be sure.

[beccaboodimples2]

DSS was involved from the start. The paper trail is there from April 10th til he died. He stayed in the hospital in ICU from April 10th til April 21st. While in the hospital he was in DSS custody. Once he was able to be released from the hospital DSS placed him into his biological grandmother's care. However after failing drug tests, he was placed into our care on May 4th. We were his kinship Guardians until August 22nd when we got full custody. We were 100% responsible for him in every aspect. Hospital, doctors, wic, medicaid, social security... everything.

[Carl]

This is just me personally speaking now. Were I in your shoes I'd go ahead and claim him as a dependent. If grandma failed a drug test, chances are she isn't filing a tax return anyway. If she is filing one, then there's no doubt that she does NOT qualify to claim him anyway.

[beccaboodimples2]

The bio mom tested positive at birth so that's how all this got started but as of right now she is in jail under different circumstances. I'm not sure who has his info regarding SSN and things of that nature. We had to get replacement of everything and get it in our name. My question now is if we claim him and they also try to claim him will we get in trouble. Especially since we have all documentation that he was in our care 98% of his life

[Carl]

If someone else claims him, the first to e-file will be accepted. The 2nd claimant will have to file by mail. In such a case, what happens is the IRS first assumes someone made a mistake. Then mail both claimants asking for clarification and proof of the dependency exemption. The one that provides the proof gets to keep the exemption. The one that does not, or can not, has to pay back the taxes for the exemption they were not entitled to. Depending on their tax bracket, that would be roughly $300 give or take, they'd have to pay back to the IRS.
No one is presumed to have committed a fraudulent act, unless they give reason for the IRS to suspect the invalid claim to the dependent was with the intent to commit fraud. People aren't perfect, and the IRS is well aware of that.

[Carl]

I'm sorry for your loss. *If* you would have otherwise qualified to claim him as your dependent had he not passed, then yes. Two things that matter here.

1 - When entering the dependent's name and other information, when/if asked how long he lived with you, select "the whole year". This is per IRS guidance for a bereaved parent.

2 - One of the screens will have a selection for "passed away in 2017" Select that box, then you must fill in the date he passed. It needs to match the date on the death certificate.

[beccaboodimples2]

Will we have to submit any paperwork? Because we do not have his death certificate. We do have the paperwork from DSS placing him in our care and from the judge who gave us full custody on August 22nd

[Carl]

No. You only provide it if the IRS requests it. If they request anything, you only provide exactly what is requested, and absolutely nothing more. Otherwise, you risk causing confusion at the IRS and that could delay your refund even longer. So bottom line is, if they don't ask for it, don't provide it.
Note that sometimes for folks in your situation, you can't e-file and will be required to "print, sign and mail" (the Print & File option) the return. If that happens to you, there is an instruction sheet that will print with the package. Read that instruction sheet because it will tell you not only where to mail the return, but also what documents you need to include with your mailing.
If you're filing a state return, there is a physically separate instruction sheet between the federal and state return printouts, for the state.

[beccaboodimples2]

Thank you!