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BackStabbed
New Member

WOW! My wife filed tax separately (MFS - HOH) and claimed all the children so she can get refund without my permission!?

My wife filed tax separately and claimed all the children so she can get refund i have not given her permission we lived together and still living together as of right now 🙂 i am the one with higher AGI,I am the only working person in the house and now i am about to file my tax return and i cannot claim my children. Should I paper file to IRS and explain that she does not have my permission in a cover letter or what ? I really do not want her to get away with this sneaky move!

5 Replies
Mike9241
Level 15

WOW! My wife filed tax separately (MFS - HOH) and claimed all the children so she can get refund without my permission!?

the tax laws say the parent that can claim them is the one with whom the children lived the greater portion of the year. this rule comes before the AGI rule. Assuming you are the one entitled to claim them under the rules above then:  

all you can do is claim the children and paper file.  

don't bother with attaching an explanation to the return it probably will be ignored.

you can file form 3949-A to report your spouse claiming false exemptions

https://www.irs.gov/pub/irs-pdf/f3949a.pdf  

can't say the IRS will act on it because it is your spouse

if not, eventually each of you will get a notice asking to amend (remove the dependents)

if she doesn't then there will be a second notice to each asking for proof that they are the one entitled to claim the dependents.

your spouse will get a bill. if she doesn't pay the bill, then you can expect the IRS eventually to put a lean on any property she owns which may include and jointly owned property. you may want to consult a lawyer about this. 

Critter-3
Level 15

WOW! My wife filed tax separately (MFS - HOH) and claimed all the children so she can get refund without my permission!?

If she will agree to amend her incorrect return (since you will turn her in for falsly claiming HOH) and file jointly then that may be better for you and at least should be considered as right now your only option is to file separately.  Seek advice from a tax attorney if needed. 

Hal_Al
Level 15

WOW! My wife filed tax separately (MFS - HOH) and claimed all the children so she can get refund without my permission!?

There is no such thing as MFS-HOH.  Since you lived together, in the 2nd half of 2021, she can only file MFS or MFJ.  She is not allowed to file as HOH. 

 

As others have said, you have to file a paper return (no attachments) and let the IRS sort it out., over time and hassle.

 

Better yet, you should agree to file as MFJ (she files an amended return, adding you and changing filing status).

MFJ vs MFS

https://ttlc.intuit.com/community/married/help/is-it-better-for-a-married-couple-to-file-jointly-or-...

If you choose married filing separately as your filing status, the following special rules apply. Because of these special rules, you will usually pay more tax on a separate return than if you used another filing status that you qualify for.

1. Your tax rate generally will be higher than it would be on a joint return.
2. Your exemption amount for figuring the alternative minimum tax will be half that allowed to a joint return filer.
3. You cannot take the credit for child and dependent care expenses in most cases, and the amount that you can exclude from income under an employer's dependent care assistance program is limited to $2,500 (instead of $5,000 if you filed a joint return). For more information about these expenses, the credit, and the exclusion see Pub 17, Chapter 32.
4. You cannot take the earned income credit.
5. You cannot take the exclusion or credit for adoption expenses in most cases.
6. You cannot take the education credits (the American Opportunity credit and the lifetime learning credit), the deduction for student loan interest, or the tuition and fees deduction.
7. You cannot exclude any interest income from qualified U.S. savings bonds that you used for higher education expenses.
8. If you lived with your spouse at any time during the tax year:
a. You cannot claim the credit for the elderly or the disabled,
b. You will have to include in income more (up to 85%) of any social security or equivalent railroad retirement benefits you received, and
c. You cannot convert amounts from a traditional IRA into a Roth IRA.
9. The following deductions and credits are reduced at income levels that are half those for a joint return:
a. The child tax credit,
b. The retirement savings contributions credit,
c. Itemized deductions, and
d. The deduction for personal exemptions.
10. Your capital loss deduction limit is $1,500 (instead of $3,000 if you filed a joint return).
11. If your spouse itemizes deductions, you cannot claim the standard deduction. If you can claim the standard deduction, your basic standard deduction is half the amount allowed on a joint return.

You may not be able to deduct all or part of your contributions to a traditional IRA if you or your spouse were covered by an employee retirement plan at work during the year. Your deduction is reduced or eliminated if your income is more than a certain amount. This amount is much lower for married individuals who file separately and lived together at any time during the year.

If you actively participated in a passive rental real estate activity that produced a loss, you generally can deduct the loss from your non-passive income, up to $25,000. This is called a special allowance. However, married persons filing separate returns who lived together at any time during the year cannot claim this special allowance. Married persons filing separate returns who lived apart at all times during the year are each allowed a $12,500 maximum special allowance for losses from passive real estate activities.

If you live in Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington or Wisconsin and file separately, your income may be considered separate income or community income for income tax purposes. See Pub 555 Community Property - http://www.irs.gov/pub/irs-pdf/p555.pdf The states of Tennessee and South Dakota have passed elective Community

Property Laws.



TomD8
Level 15

WOW! My wife filed tax separately (MFS - HOH) and claimed all the children so she can get refund without my permission!?

If the kids belong to both of you and lived at least half the year with both of you, then you are both custodial parents.  If that's the case, then technically your wife has the right to file MFS and to claim the children.  What she can't do is file HOH, as others have explained.  A married taxpayer living with their spouse cannot file HOH.

Form 3949 is not appropriate for this situation.

If you're the father, you also have the right to claim the children since you too are a custodial parent.

So - as others have said - your only recourse is to paper-file your return as MFS and claim the kids.

When the IRS receives two returns, each claiming the same dependents, it will apply its own tie-breaker rules.  Winner gets the tax benefits; loser's return and tax bill get adjusted accordingly, including possible interest and penalties. 

Filing MFS is costing you both considerable money, so the ideal outcome would be for you to convince her to file an amended return and to file MFJ.

**Answers are correct to the best of my ability but do not constitute tax or legal advice.
Critter-3
Level 15

WOW! My wife filed tax separately (MFS - HOH) and claimed all the children so she can get refund without my permission!?

*** TIE BREAKER RULES IN SHORT ***

 

If 2 taxpayers both claim the same dependents then the person with the HIGHER income wins  and the loser has to pay back the money they got from claiming the kids.   SO you said she did not work in 2021  thus it sounds like she filed to get the CTC on the kids and possible the EIC based on 2019 earned income so they may have a lot to lose. If you can talk to the other parent and come to a reasonable agreement for both of you.

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