Son lived w/ me for 6 months (father 3 months) prior to going out-of-state college 2016. Son gone all 2017 (full year college). Father claimed. My turn. IRS on my side?

[lwpowelljr]

Son lived with us for 6 months (3 months with his dad) before he went off to college in another state in 2016.  Dad claimed him in 2016 (even years, I'm odd years - as was the divorce decree).  Son's 2017 dependency is no longer bound by divorce decree as he is 19.  I paid for 100% of son's college tuition, housing allowance, and books via my 9/11 GI Bill.  Being an odd year (even though it doesn't matter anymore) I was going to file my son as a dependant on my taxes.  I found out that his dad already did.  I know divorce decree has no bearing with the IRS/taxes, but physical residence does.  Since he lived out of state the entire 2017 year (went to college all year long) would the IRS side with me since my son lived with me 6 months prior to going off to college (only 3 months with father) back in 2016?

[Phillip1 · Accepted solution]

Possibly, but it may take a lot of correspondence with the IRS (and you may want some professional assistance through such an ordeal).

The decree might actually be helpful in this situation in that is can show that you were entitled to the exemption on odd numbered tax years, and it could show if you were the custodial parent under the divorce decree.

If you want to contest your ex-husband claiming the exemption, you will need to do the following:

1. Include your son as a dependent on your return.
2. Mail your return to the IRS
3. The IRS will mail you and your ex-husband after your return is processed to ask each of you to prove that you are entitled to claim your son as a dependent.

• In response, be prepared to provide the IRS with documentation such as the following:
• Copy of the divorce decree as it relates to custody and claiming the dependent exemption.
• Copy of his high school records (assuming he attended high school while living in your home).
• Notes from his doctor stating he lived with you before college
• Notes from your pastor stating he lived with you before college
• Any other records that show his address was in your home before he left for college.

The IRS will compare any documentation that you and your ex-spouse send to the IRS and make a determination as to who can claim him as a dependent. If the IRS determines that you are entitled to the exemption, the IRS will assess the tax that your ex-spouse should have paid with some possible interest and penalties. If they give the dependent exemption to your ex-spouse, they will assess the additional tax, interest, and penalties on your account.