I cant claim my son who lives with me, but the father keeps claiming him without my permission. The father does not reside with us nor supports him. Please what can I do before he claims him for this year.
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.
I think the poster may have meant "I can't claim him BECAUSE the father keeps claiming him."
@mj6974 Is someone else claiming your son, such as a grandparent with whom the two of you live?
Can the father be arrested for this or will it just be penalties and interest?
Can you penalties include arrest? What is considered penalties?
I am asking because I have a friend that is a non-custodial parent that had his child living with him for the majority of the year and mother gave verbal permission for him to file taxes but changed her mind yesterday, after he already filed his taxes. Now, she is saying that if he doesn't give her all the money from his entire tax refund, she will file fraud on him.
Fraud is a legal matter and only can be determined in a court of law. Since your friend is the custodial parent the only way for her to relinquish the personal exemption for a child is to give the non-custodial parent a signed IRS Form 8332.
Read the answers and comments below for the correct course of action.
Hi @sam004 ;
The IRS decides custody based on where the child actually lives, not what any court order says. If the child lived with your friend (slept in his home) more than half the year (more than 183 nights) then your friend is fully entitled to the dependent and does not owe the other parent a dime. He may need to count the number of nights, and he should take steps to document it as well as possible, as self-defense against a complaint. Posts to social media showing that the child was in his home, date stamped photos, maybe a letter from the school showing that the bus picked up the child there. A letter from your neighbors if the kids play together a lot. Anything else that can show the child lived there more 183 nights. Going forward, I would take a selfie of the parent and child together at bedtime every day, make it a ritual, to prove the number of nights in the future.
If the child did not stay there more than half the year, then your friend is screwed because he relied on "verbal" permission. The IRS regulations require that, if he will claim the dependent, he must get a signed release form from the other parent and mail it in with his return. That release form can not be revoked by the custodial parent once filed. But since this was only verbal, he was not allowed to claim the dependent.
However, he probably does not owe her "all the money from his entire tax refund". What he can do is tell the mother to claim the dependent and print and mail in her tax return. Then she will get whatever amount she is legally entitled to, which may be a lot less than "his whole refund" especially if her income is lower. Your friend will file an amended return to remove the child dependent and pay back whatever *part* of his refund was due to claiming the child, which may be less than the whole thing.
What my friend is wondering is.... what is the worst that will happen? He does not have enough to document for 183 days even though he had him in his custody.
The worst is that the IRS assesses back taxes, plus interest from the date originally due (April 15) and if they think he deliberately lied, they can also assess an accuracy penalty. But it's all money. No jail or anything like that.
But he should not necessarily give up so easily. If he claims the child and the ex files a complaint, I don't think the IRS will actually do anything. If the ex files a tax return with a competing dependent claim, the IRS will investigate both parents, and they will be looking for custody evidence from both parents. They aren't controlled by the court order. While it may be hard for him to prove he physically had the child, it will be even harder for her to prove.
In my suggestions for evidence I should also have mentioned emails or texts about custody, drop offs and pick ups. "Can you keep him an extra night so I can go clubbing." "You didn;t show up to hand him over so I guess I'm keeping him another night." etc.
I wonder if the ex is trying to get "his whole refund" because she knows she won't qualify for much even with the child.
Most important is that he not pay her "his whole refund" to prevent her from filing a complaint. Because even if he does pay her off, she could still file a complaint, and he is still at risk of losing the dependent investigation, and then would have to pay twice -- once to her and again to the IRS. IF he actually wants to remove the dependent claim (and I don't think he should), but IF he wants to remove the dependent claim the ONLY thing he should do is file an amended return that removes the child and pay back the IRS, not her, and tell the ex to file her own return and get whatever she is actually entitled to that way.
<a rel="nofollow" target="_blank" href="https://www.irs.gov/individuals/how-do-you-report-suspected-tax-fraud-activity">https://www.irs.gov/individuals/how-do-you-report-suspected-tax-fraud-activity</a>
The custodial parent can also file a court motion for a Cease and Desist order.
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.
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
And he goes on and tells me he pays child support so he did that PURPOSELY
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.
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.
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.
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).
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.
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/publications/p17/ch03.html#en_US_2014_publink1000170897</a>