Me and my wife were married in January of 2018. We were together until July 2018, then decided to split. We are still married no divorce has been filed and she doesnt work, and hasnt since we been married. She recently gave birth to our daughter in December of 2018, and let someone else claim our daughter and stepson for this years returns. She withheld the social security numbers from me since someone else claimed both children. Is this legal? If not what can I do?
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It looks like your stepson and daughter meet the qualifications to be a qualifying child (see details below) for both you and your wife but not for someone else. You could file a paper return and try to claim the children but you will need their social security numbers and be prepared to have proof that you had a right to claim them. The IRS will use the Tie-Breaker Rules if a child meets the rules to be a qualifying child of more than one person.
Tests To Be a Qualifying Child Tests
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 and younger than you (or your spouse, if filing jointly), (b) under age 24 at the end of the year, a student, and younger than you (or your spouse, if filing jointly), or (c) any age if permanently and totally disabled.
3. The child must have lived with you for more than half of the year (your daughter is considered to have lived with you since the beginning of the year because she was born in 2018).
4. The child must not have provided more than half of his or her own support for the year.
5. The child must not be filing a joint return for the year (unless that return is filed only to get a refund of income tax withheld or estimated tax paid).
It looks like your stepson and daughter meet the qualifications to be a qualifying child (see details below) for both you and your wife but not for someone else. You could file a paper return and try to claim the children but you will need their social security numbers and be prepared to have proof that you had a right to claim them. The IRS will use the Tie-Breaker Rules if a child meets the rules to be a qualifying child of more than one person.
Tests To Be a Qualifying Child Tests
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 and younger than you (or your spouse, if filing jointly), (b) under age 24 at the end of the year, a student, and younger than you (or your spouse, if filing jointly), or (c) any age if permanently and totally disabled.
3. The child must have lived with you for more than half of the year (your daughter is considered to have lived with you since the beginning of the year because she was born in 2018).
4. The child must not have provided more than half of his or her own support for the year.
5. The child must not be filing a joint return for the year (unless that return is filed only to get a refund of income tax withheld or estimated tax paid).
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