Can my sons mom let her boyfriend claim my sons on his taxes?

[Mjsisk86]

She has them around 75% of year and I have them around 25% of the year.  She does not work so she has been letting her boyfriend claim them on his taxes for the last couple of years.  

[DoninGA]

Yes, he would be able to claim the child as a non-relative dependent on his tax return under the Qualifying Relative rules if the child meets all the requirements under the rules.

To be a Qualifying Relative -

1. The person cannot be your qualifying child or the qualifying child of any other taxpayer. A child is not the qualifying child of any other taxpayer if the child's parent (or any other person for whom the child is defined as a qualifying child) is not required to file an income tax return or files an income tax return only to get a refund on income tax withheld.
2. The person either (a) must be related to you or (b) must live with you all year as a member of your household.
3. The person's gross income for the year must be less than $4,200 (social security does not count) in 2019
4. You must provide more than half of the person's total support for the year.
5. The person must be a U.S. citizen or a U.S., Canada, or Mexico resident for some part of the year.
6. The person must not file a joint return with their spouse.

[TomD8]

<<I have them around 25% of the year.>>

If that's the case, Mom's boyfriend cannot claim them, because of rule 2(b) cited by @DoninGA .

[Mjsisk86]

Am I legally able to claim them then?  

[Critter]

First I would tell the "boyfriend" that he was not eligible to claim the child and that you will turn him into the IRS for filing a fraudulent return if he doesn't immediately amend the incorrect returns  ... the fines/penalties/interest for claiming a child incorrectly are severe. 

Next, I would explain this to the mother and request that she waive the exemption to you by signing a form 8332 for every tax year you are eligible to get the child so you can go back and amend the prior years and claim the child in the future.  This will ONLY get you the dependency exemption and the Child Tax Credit since you are NOT the custodial parent ( where the child lives more than 1/2 the year).  The right to use the child for Head of Household status, the Earned Income Credit and the Day Care Credit always remains with the custodial parent EVEN if they do not or cannot file a return. 

[Critter]

There is no such thing in the Federal tax law as 50/50, split, or joint custody.  The IRS only recognizes physical custody (which parent the child lived with the greater part, but over half, of the tax year.  That parent is the custodial parent; the other parent is the noncustodial parent.)

Who can claim the exemption and credits depends on who is the custodial parent. (By the IRS definition of custodial parent for tax purposes - this is not the same as the custody that a court might grant.).

The test that the IRS uses to determine the custodial parent is where the child lived for more than 1/2 (or greater part) of the year. The IRS will go so far as to require counting the nights spend in each household - that person is the custodial parent for tax purposes (if exactly equal and more than 183 days - The custodial parent is the parent with the highest AGI, if less than 183 days then neither parent has custody). That can usually only occur if both parents lived with the child at the same time.   And yes they are that picky.

The custodial parent may claim everything child related  UNLESS they waive the dependency exemption to the non custodial parent via a form 8332.... in that case the child may be used on 2 separate returns but only in the following way :

Only the Custodial parent can claim: (Child would be listed as non-dependent EIC & CC only)
-Head of Household 
-Earned Income Credit
-Child Care Credit

The non custodial parent can only claim: (Child would be listed as dependent)
-The Exemption
- The Child Tax Credit

See Special rule to divorced or separated parents (or parents who live apart) on page 32:
https://www.irs.gov/pub/irs-pdf/p17.pdf

But only if specifically specified in a pre-2009 divorce decree, separation agreement or the custodial spouse releases the exemption with a signed 8332 form - after 2009 the IRS only accepts a signed 8332 form that must be attached to the non-custodial parents tax return.

[DoninGA]

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@Mjsisk86 wrote:

Am I legally able to claim them then?  

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To claim your child as a dependent they would either have to live in your home for over one-half of the year or you would need to have provided over one-half of their support for the year.

There are two distinct rules for claiming a dependent, the Qualifying Child rules and the Qualifying Relative rules.  Since the child did not live in your home for over one-half of the year you cannot use the QC rules to claim the child.  If you did not provide over one-half of the child's support then you cannot use the QR rules. 

To be a Qualifying Child -

1. The child must be your son, daughter, stepchild, foster child, brother, sister, half brother, half sister, stepbrother, stepsister, or a descendant of any of them.
2. The child must be (a) under age 19 at the end of the year, (b) under age 24 at the end of the year and a full-time student or (c) any age and permanently and totally disabled.
3. The child must have lived with you for more than half of the year. Temporary absences while away at college are considered living with you.
4. The child must not have provided more than half of his or her own support for the year.
5. If the child meets the rules to be a qualifying child of more than one person, you must be the person entitled to claim the child as a qualifying child.
6. The child must be a U.S. citizen or U.S., Canada or Mexico resident for some portion of the year.
7. The child must be younger than you unless disabled.

[TomD8]

<<Am I legally able to claim them then?>>

Yes, you as the non-custodial parent can claim them if certain conditions apply.  For the details, see Children of divorced or separated parents on page 22 of this IRS reference:  https://www.irs.gov/pub/irs-pdf/i1040gi.pdf

[Mjsisk86]

She's saying since they return to her it still counts as all year. Does anyone know if that is true?  They stay with me for a total of 12 weeks of the year.  

[DoninGA]

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@Mjsisk86 wrote:

She's saying since they return to her it still counts as all year. Does anyone know if that is true?  They stay with me for a total of 12 weeks of the year.  

---

As previously stated, the boy friend Cannot claim the children as dependents on his tax return since they did not live in his household for the entire year, as Required under the Qualifying Relative rules.

To be a Qualifying Relative -

1. The person cannot be your qualifying child or the qualifying child of any other taxpayer. A child is not the qualifying child of any other taxpayer if the child's parent (or any other person for whom the child is defined as a qualifying child) is not required to file an income tax return or files an income tax return only to get a refund on income tax withheld.
2. The person either (a) must be related to you or (b) must live with you all year as a member of your household.
3. The person's gross income for the year must be less than $4,200 (social security does not count) in 2019
4. You must provide more than half of the person's total support for the year.
5. The person must be a U.S. citizen or a U.S., Canada, or Mexico resident for some part of the year.
6. The person must not file a joint return with their spouse.

[Hal_Al]

Q. She's saying since they return to her it still counts as all year. Does anyone know if that is true? 

A.  That's a gray area. I've seen it answered both ways. It's appears  to be a matter of "visitation" vs. split custody.

Even if the BF is allowed to claim the child for the "Other dependent credit" of $500 (per child), he is definitely NOT allowed to claim the child for the Child Tax credit (up to $2000 per child) or the Earned Income credit (EIC) (up to $5716 for two kids). And that is most likely what he is fraudulently doing.  He cannot claim those because the child is not related.

Even if the mother gave you form 8332 to allow you to claim the child, you could  only claim the Child Tax credit.  You cannot claim EIC because the child lives with you less than half time.  The mother is the only one than can claim EIC and she needs to work to get that (or even the refundable portion of the child tax credit)

So its the boy friends $500 vs your $2000. Make a deal!

[Hal_Al]

Q. Am I legally able to claim them then?  

A.  No. Even if neither  the mother or the boy friend are claiming the children,  you still need form 8332, from the mother (custodial parent), in order for you to claim them.  Even then, you can only claim the child tax credit (before 2018, you could also claim the exemption"). 

Q. Can my sons mom let her boyfriend claim my sons on his taxes?

A.  Yes. See other replies for details. 

[Critter]

IRS custodial/non custodial   parent rules count the NIGHTS they are with you ... if they do stay overnight 12 weeks of the year ( 12 x 7 = 84 nights)  then you are the non custodial parent according to the IRS and you cannot claim them without a signed 8332 from the custodial parent  AND  the boyfriend cannot claim them at all. 

NOW if the child only visits you and returns home at night that changes the picture.  Read the other comments and answers above.