Should I mail in my return if my child’s father has efiled her for 2020? She lived with me all year, he has legal custody but $0 recieved for CS. I have pyshical custody

[mskrys12345]

Our court papers say he had the right to claim her, but under our own terms we have changed our custody agreement and she lives with me. I have made it clear I do not want CS payments from him, I just want my daughter to live with me and I will support her financially, but he claimed her without my knowledge. So now I’m out the CS I should receive and the tax money I expected to receive. How can I change this? He claimed her illegally in my opinion! HELP!

[macuser_22]

If you or a dependent that you are entitled to claim has already been claimed by another taxpayer, your e-filed return will reject since the 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.

If neither taxpayer amends, the IRS will send a second letter asking for each taxpayers proof that they are entitled to the claim.

The IRS will evaluate each taxpayers claim and award the credit to one taxpayer, the other will have to payback any refund received plus interest and possible penalties.

Do not ignore the letters or you will loose.

[macuser_22]

Custodial Parent
These are a paraphrase of the IRS rules for divorced or separated parents that live apart.

[Note: Unless the parents have been separated at all times during the last 6 months of the year, these rules do not apply.]

See “Children of divorced or separated parents or parents who live apart” in IRS Pub 501 for full information.

https://www.irs.gov/publications/p501#en_US_2020_publink1000220904

This assumes that the child is under age 18 (in most states).  Once the child becomes an adult (Emancipated child), custody becomes mute and these rules no longer apply.(See examples 5 & 6 in Pub 501 for more information)

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 legal 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 so the child cannot be claimed by either parent). And yes they are that picky.

See Custodial parent and noncustodial parent  in Pub 501

https://www.irs.gov/publications/p501#en_US_2020_publink1000220904

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

The non custodial parent can only claim: (Child would be listed as dependent)
- The child as a dependent
- The Child Tax Credit or credit for other dependents

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.

Note. If you are the non-custodial parent filing your return electronically, you must file Form 8332 with Form 8453, (U.S. Individual Income Tax Transmittal) for an IRS e-file Return. See Form 8453 and its instructions for more details. This must be done within 3 days of your e-filed return being accepted by the IRS.

This does NOT mean that the custodial parent can ignore any Decree or court order allowing the non-custodial parent to claim the exemption - they can be required to issue the 8332 form. They could be required by the court to do so or be in contempt.

-

[Mike9241]

FYI. the IRS only cares about physical custody - that parent gets the dependent unless that parent provides form 8332 to the noncustodial parent. the courts care about the legal agreement.  whether an oral modification has any legal effect (it should be anticipated that your ex will deny the oral modification) would take a lawyer to answer.  consult one before you do anything because you could find yourself taken to court by your ex and found in contempt.    

[Hal_Al]

@mskrys12345 said "Our court papers say he had the right to claim her".

1. The IRS doesn't care about any court order, unless it is dated before 2009. The IRS goes by it's own rules and will award the dependency to the custodial parent, if both parents try to claim the child. The only remedy against an ex is to take her/him back to court for sanctions

2. If you are the custodial parent and If someone else claimed your child inappropriately, and if they file first, your return will be rejected if e-filed. You would then need to file a return on paper, claiming the child as  appropriate. The IRS will process your return and send you your refund, in the normal time. Shortly (up to a year) thereafter, you'll receive a letter from the IRS, stating that your child was claimed on another return. It will tell you that if you made a mistake to file an amended return and if you didn't make a mistake to do nothing. The other party will get the same letter you did. If one of you doesn't file an amended return, unclaiming the child, the next letter, from the IRS, will require you to provide proof. Be sure to reply in a timely manner.

Winner gets the tax benefits; loser gets to pay the IRS back with penalties and interest.  The custodial parent almost always wins. The non-custodial parent can only claim the child as a dependent if the custodial parent gives permission (on form 8332) or if it's spelled out in a pre 2009 divorce decree.  

https://www.thebalance.com/claiming-same-dependent-audit-risk-3193030

3. The custodial parent has first priority on claiming the children on her taxes; regardless of the amount of support provided by the non-custodial parent. The non-custodial parent can only claim the child as a dependent if the custodial parent gives permission (on form 8332) or if it's spelled out in a pre 2009 divorce decree. (without conditions - usually the payment of child support). Even if a divorce decree, dated after 2008, gives the non-custodial parent the right to claim the child, he must still get form 8332 from the custodial parent. A properly worded decree should require her to provide that form. https://www.irs.gov/pub/irs-pdf/f8332.pdf. 

For tax purposes, there is no such thing as joint custody, regardless of what your legal agreement says. The requirement, to be custodial parent, is that the child live with you MORE than 50% of the time. One of you has to be the custodial parent and the other the non-custodial parent. In the rare case (could probably only happen in a leap year like 2016), where the time that  each parent has the child is exactly equal, then the parent with the higher income (AGI) is the custodial parent, for the purpose of determining who has first priority on claiming the child as a dependent. 

4.There is a way to split the tax benefits. For future negotiations with the other parent (and maybe even for this year) 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: http://www.irs.gov/publications/p17/ch03.html#en_US_2014_publink1000170897 Scroll down to "Children of divorced or separated parents (or parents who live apart)"