Claiming Dependents: Complications in the New Tax Law
I spoke with Kathy Burlison, Director of Tax Implementation at H&R Block headquarters, about the new "uniform definition of a child," and some issues that will complicate preparing taxes for 2005.
William Perez: What's the deal with the new rules for claiming dependents? Is there anything we should be concerned about?
Kathy Burlison: It would be wise not to simply do what you did last year. For example, the old support test is gone.
WP: The support test meant that if a taxpayer paid more than half of a child's financial support, then that taxpayer could claim the dependent. Under the new rules, the dependent cannot provide over half of his or her own financial support. So, potentially, more than one taxpayer could qualify to claim the same child?
KB: Yes. The support test is a "gotcha." There are scenarios where more than one taxpayer could claim a child. In that case, we would look at which taxpayer would have the best tax advantage in claiming the child.
WP: Are there situations where taxpayers could lose a dependent under the new rules?
KB: There are three family situations where taxpayers could lose the benefits of claiming a dependent. Unmarried couples who are supporting a child who isn't their "qualifying child" under the new rules could lose out. If the dependent is someone else's qualifying child, then neither partner could claim the child under the "qualifying relative" rules.
WP: So, let's say John and Mary, an unmarried couple, are caring for Kathy, who is John's neice. Kathy would be the qualifying child of her mother or father, but would be a qualifying relative for John and Mary. Since Kathy meets the definition of a qualifying child for at least one taxpayer, she cannot be claimed as a qualifying relative for anyone else?
KB: Yes, that's right. We could summarize it this way: Once a qualifying child, always a qualifying child, and never a qualifying relative.
WP: What are some other family situations where taxpayers could lose out?
KB: Separated parents who attempt to split the tax benefits, such as one taxpayer claiming the dependent and the other taxpayer claiming the child tax credit and earned income credit. Under the new rules for dependents, all the child-related tax benefits are tied to claiming the dependent. So now one taxpayer has to claim all the benefits.
WP: No exceptions?
KB: Except in the case of a court-approved separation or divorce decree.
WP: What about divorced parents where one parent waives the right to claim the dependent?
KB: The custodial parent can still waive his or her right to claim the dependent and the child tax credit. The dependency exemption and the child tax credit cannot be split, they must go together. The head of household filing status, earned income credit, and child and dependent care tax credit always stays with the custodial parent. The childcare credit can only be claimed for qualifying children.
WP: Thank you for speaking with me today.
Kathy Burlison is Director of Tax Implementation for H&R Block, and she provides training materials for all of the H&R Block tax advisors around the nation. H&R Block operates over 10,000 retail locations offering tax preparation services. H&R Block also publishes the TaxCut tax preparation software.
All I can say if very unfair. I just got broadsided because I have joint custody and pay more than half of their expenses, but apparently my ex claimed them when she shouldn’t have. It appears I have no recourse other than to go back to court to force her to sign the IRS form relinquishing them as dependents.
In the example where the John and Mary want to claim John’s neice Kathy as a qualifying child or relative, I would say they can claim Kathy as a qualifying child. First, she meets the relatinship test (descendant of John’s sibling), she meets the residence test (lived with John more than six mos)meets age test(under 19)and the support test (Kathy did not provide more than half of her own support)The key then is Kathy the qualifying child of someone else. The column thinks Kathy’s parents could claim her, but they fail the qualifying child test on two counts. Kathy did not live with them and the parents did not provide more than half of the support. So, John can claim Kathy as a qualifying child. Qualifying relative is irrelevant in this case.
I agree that (in this example) John and Mary could claim Kathy as a qualifying child, if Kathy lived with John and Mary for more than half the year. However, I wrote the example deliberately without specifying how long Kathy has been living with her uncle and aunt. Thus, as it stands, Kathy is the qualifying child of her parents, and is automatically precluded from being the qualifying child or qualifying relative of anyone else.
Another observation: you mentioned that the parents did not provide more than half of Kathy’s support. This fact is irrelevant under the new uniform definition of a child. All that is required: that Kathy not provide over half of her own support. In situations where it is not clear who can claim the child, the IRS applies the tie-breaker tests, which will award the dependent’s exemption to the parents.
A married couple got separated around September but legallly still marry. A wife claimed a child as on her tax, what about the husband? He has the right to claim the child too right becasue he support for than half of the year? But since the wife already filed he loose out?
My situation I guess is a little more confusing and maybe it just takes a professional to explain. My step son was living with us for 4 years. My husband was listed as the domicilary parent for that time. In August 06 he was gone to school and his ex came and took the boy home with her. By the time my husband came back from his school the boy had already been enrolled in school and had been at his mothers for three weeks. He is fourteen and old enough to say who he wants to live with. My husband and I felt it better on everyone financially and emotionally if we just let him stay with her. Now we have rolled around to tax season and she, I am sure, has already claimed him on her taxes. Legally who should be able to? If in fact it is us can we do it anyway and not be penalized in an audit?
One of the four requirements for claiming a dependent as a qualifying child is that the child must live with you for more than half the year. In the scenario you give, the child lived with his father from January to August 2006, and then lived with his mother from August to December 2006. The child clearly lived with his father for more than half the year, and so the father would claim his son as a dependent. In an audit, the IRS will look first at the requirements for a qualifying child, and then look to the tie-breaker tests. Under the tie-breaker tests, the dependent will be awarded to the parent with whom the child lived for the longest time during the year — again, which will the father. Your husband has the superior claim to the dependent, and you should file your tax return with confidence knowing that you will prevail in an audit.
My scenario is a very harsh one. I pay for about 90% of the support of my two children, who live with their mother. While they choose not to live with me, I am forced to pay almost entirely for their support and well being as their mother does not work. By rights of paying for the lions share of their support… I should be able to claim them as deductions should I not??? This makes it sound like I have no right since I am the non-custodial parent. Evidently I have to have my ex fill out a form so I may receive the deductions I have to pay all year for??? Egads!!!
The way the law is written, to claim a dependent, the dependent must live with you for more than half the year. As you said, Steve, you can ask your ex to release her claim to the dependents by filing Form 8332 (pdf). This would release her claim to the dependents and enable you to claim them. However, unless this provision was stipulated in your divorce decree or child custody agreement, I doubt you’ll be able to convince her to do this.
My ex and I divorced four years ago, I went to court and got custody of the children. Then, our daughter decided to live with her dad and our son continued to live with my current husband and I. My son this summer as he does every summer went for vacation to visit his dad. Now, my ex has kept my son and filed a temp order for custody. He didn’t get custody until august 13, 2007. From January 2007 on my son lived with me. Who legally can claim him?
A non married couple has one child. Mother has full custody and pays for daycare. Father pays child support and medical. Child lives with mother all year. Father wants to claim child everyother year. Can this happen?? Who will get the deduction for daycare??
The rules are not fair for non-custodial parents who pay child support and medical expenses for the children but receive no deductions come tax time. The IRS should at least look at this rule and possibly allow the credit/deduction to be split.
Ihave a 3 part question
1)My finance’s license is suspended due to child support, however he has not been to court yet. Will his taxes refund be affected? 2)Also he was injured in a car accident he was not able to work until Oct.07. I handled all of his expenses. Can I claim him as a dependant?
3)More so will the pending child support issue affect my refund?
Not too complicated really-just need an opinion. I have two children, one of whom moved to Georgia with us during a summer visit (July 07′)–so in effect, she has been living with us 6 months of the year. Her mother in North Carolina is the custodial parent per the divorce decree but my wife and I have been the guardian since July. Since moving here my wife and I have invested a great deal of money in seeing that she receive the routine medcal care required for hypothyroidism, routine pediatric visits as well as orthodontic care that was, in the words of the orthodontist, delayed unnecessarily and, in fact, negligently by her mother. I feel that the “fair” thing to do here is that she be listed as a dependent on our taxes for 2007; however, her mother is unwilling to cooperate. Does my case to claim my daughter as a dependent hold water or am I “up the creek”?
Nothing is fair. The laws need to be changed BAD. Most couples, whether married or just ex-girlfriends or boyfriends, are not friends or decent enough to each other to talk. So that form that must be signed to allow the one that deserves to claim the kid(s) is a JOKE. Just a MESS that really needs to be fixed.
Well her is my scenerio im married but seperated we have been seperated for over a year and a half.We have a son who is a yr old and My ex claimed my son last year on his taxes but my son doesnt live with my ex he lives with me and has been living with me since we seperated. Now he does pay child support and nothing else. he has seen my son like maybe 4 times in one year. So I want to claim him this year but the only problem is that i havent worked this whole year and my sister has been head of our household. Can she claim my son since she has been providing for us.
This is so confusing!! Unmarried parents living apart, child live w/mother 12 months. Father pays over 1/2 expenses for their child. Can the father claim the exemption for his daughter and the mother claim the EIC and childcare/daycare expense?
i think the tax places need more verification papers on the children people are claiming,because i have got to ammend my taxes due to someone else that me or my husband does not even know has claimed our daughter ,after the ammendment the irs will go after that person but in long run we had to proof she has never been with anyone else and now we have to wait 8-10 weeks for tax returns .shes only 10
if an ex-wife dosent work how can she file income tax. the only money she recived was childsupport and how can her husband claim kids on his tax returen that isnt his.
Can a son claim his mother as a dependent if she lives with him and he pays the household bills but she receives social security which exceeds the amt allowed for one exemption?
Crazy huh , I think our goverment needs to do away with the Taxes!
Steve, it is very unfair, but I’m sorry to say the law is not with you. The law ASSUMES that the parent with whom the child lives provides more than 50% of the support. The only way to circumvent this is to have child custody stipulated in your Joint Parenting Agreement. For example, my ex-wife and I alternate years claiming our son for tax purposes. It must be in the Joint Parenting Agreement, signed by both parties, and approved by the judge. Then, of course, each parent must abide by it. If you both try to claim the same child in the same year, at best you’ll get less than the expected refund. At worst, you’ll get audited.
My son started living with me in September of 2007. Obviously I am not entitled to file in a different status or claim him as a dependent for the exemption. His mother has physical custody according to the agreement. He will probably live with me throughout his high school (15 years old) He sees are about 20 percent of the time. I also continue to pay child support. I do not know if she will release the exemption, but I plan to file head of household and immediately upon receipt of w-2 file the return. I believe the tie breaker is the redemption. Secondly, I would be the only one who could claim head of household in the current circumstances and via an audit, correct?
In the second sentence, I meant that I could not claim him as a dependent or get an exemption for 2007 due to the residency issue. However, for 2008, it would seem that I am entitled for both head of household and the exemption.
George, you right that you are not entitled to claim your son as a dependent, nor use the Head of Household filing status, for 2007. That’s because to be a dependent and to get HOH status, the child needs to live with you for more than half the year.
For 2008, you might qualify for HOH if your son lives with you for more than half the year. You might also be able to claim him as a dependent if the mother releases the dependency exemption to you for that year.
my husband and i will have finished our divorce by dec of this year. since jan of this year he has had our daughter about 8%. i was granted full custody about 2 months ago. but then he askes if he can claim her.. can he? he said that it would benefit both of us . how is this poss? he is in the military and makes more money than i do so is that why? is it legal? i mean that extra money would really help me out and i know that if for some reason he would get more back bc of his income and being in the military that he would give me the money, but im just not sure how this works or if it really matters how much you make vs how much you get back for having a dependent.. HELP!!!
My ex-husband has traditionally made more than I have, as we agreed I would put my career on hold to stay home with our children when they were young. I renewed my career 6 years before we were divorced, have full custody, provide more than 1/2 their support, and he takes them (his choice) no more than 4 days per month, and often less than 8 hours per month. He is supposed to cost-share medical and extra-curricular expenses with me and is consistently behind at least 2 quarters. I signed away the right to claim 2 of our children as dependents when we divorced, and would like to know how I can get them back! The individual exemption would just about cover how much he owes me each year…..
I WAS TOLD THAT I COULD NOT USE MY 17 YEAR OLD CHILD NOMORE AS A QUALIFING DEPENP.. AS OF THIS YEAR. SHE IS STILL IN SCHOOL. I AM THE PROVIDER 4 HER. IS THIS THE TRUTH OR NOT. PLEAASE REPLY?
Letrina, you’ll need to review all the qualifications for dependents to answer the question. But in general, as long as your daughter is a full-time student and under age 24, then you can claim her as a dependent. If she’s not in school, then she would need to be under 19 years old to be claimed as a dependent. Now, you might also be thinking of the child tax credit or the stimulus refund, both of which require that the dependent also be under age 17.
my scenario is very complicated some one please help me. I have a 7 year old son who is disabled and recieves ssi payments. Me and his father have never been married, and do not live together, i am the custodial parent, and also the payee of his ssi. I provide more than half of his support, his father payes child support, and chooses not to have anything to do with him. However he wants me to sign this form allowing him to claim him as a dependent this year if i do this can i still recieve the eic on him. also since i am the payee on his ssi, does this mean that his dad cant claim him at all.
I am a single parent of an 18 year old college freshman. Her part time income amounted to $3000.00 last year. Her friend has lived with us for 2 years, they are 20 years old. They are also a college freshman, having recently discharged from the Air National Guard. Her income amounted to app. $3000.00, as well. I have provided all of the support for both of them throughout this entire year. I feel I should be able to claim them as dependents on my taxes, they feel they should be allowed to file independently and receive their refund. Who is right??
I AM TOTALLY CONFUSED ABOUT MY SITUATION. I got divorced four years ago, the divorce agreement states that my ex husband can claim one child each year as a dependent. It doesnt say anything about child tax credit or anything and he only pays fifty dollars a month for two kids for child support. And never sees them. So can I legally claim both kids. I am now remarried and my new husband is furious because he pays for everything. Any advice.
Through a divorce agreement in 1993, my wife had given her ex the right to claim one of their two children on taxes, however, provisions were never stipulated about which years or how long he could claim her. He is now remarried and has had another child. My wife and I were married in early 2008. Recenlty, we asked him to stop claiming her so that we might recoup some of the myraid of expense throughout this year and he declined. The 17 y/o child and her brother live with us full time and we certainly pay more than half of their expenses including medical /dental /eye care. Does he have any rights to claiming? If we both claimed her who would win? He currently claims 4 dependents while only 3 are living full time in his home, while my wife and I are providing for 4 and presumably can only claim three. Please help me out on this one?
My question deals with my husbands x wife allowing her mother to claim the children on her taxes. the children do technically live with the grandmother (and mother) but we support the children financial beyond the child support we are expected to pay. I have hear rumors that it is not legal for the grandmother to claim the children without the consent of the father. Is that true?
Sherry, the grandmother may be eligible to claim the kids as dependents, but only if the kids live with her for more than half the year. If the kids and the mom all live together with grandma, then technically only the mother is eligible to claim the kids. That’s because the tie-breaker tests for qualifying children awards the dependents to the parent.
As for how much money you pay for the support of the children, that is no longer a relevant criteria. The relevant factor is that the kids cannot provide more than 50% of their own financial support.
Wendy, you are eligible to claim your daughter, but you are probably not eligible to claim her friends who are living there with you. Your daughter is a qualifying child with respect to you. The roommates could be qualifying relatives if they live with you for the entire year. However, the roommates will likely be qualifying children with respect to their parents, and so would prevent you from claiming them as dependents.
All the kids are eligible to file their own tax return and obtain a refund of their withholding, even if they are being claimed as dependents.
Mandy, you should probably honor the divorce decree, if only to keep your end of the bargain. Thus he should claim one of the kids and you should claim the other. You will be able to claim the child tax credit definitely for your dependent, and possibly for the other child as well.
If you want to revoke the permission you gave to your ex-husband to claim one of the dependents, you will need to notify him of this revocation at least a year in advance. You should first talk this over with a tax professional or possibly an attorney just to be sure this will be in your best interests.
David, you’ll need to re-read the divorce agreement and also this section of Publication 501 dealing with separation agreements made after 1984. Starting this year (2009), your wife is going to have to specify exactly which years the ex-spouse can claim the child by using Form 8332. This would be a good opportunity to review your entire situation with an experienced tax professional so you can plan out which year(s) you want to provide the ex with the ability to claim the child.
my daughter lived with her mother for the greater part of 2008. I paid half of the day care expensis but my ex gets to claim her for 2008 according to the seperation papers,and i get to claim her in 2009 and back and forth. My question is can i claim the daycare expensis i paid in 2008 even though i am not claiming my daughter?
i would like to know if i can claim my god daughter even tho she didnt live with me
can i claim my god dauther even if she doesnt live with me she is 9 months old now
Jon, only the custodial parent is eligible to claim the child and dependent care tax credit. Sorry.
baby gurl, generally only person who has actual custody of the child is eligible to claim the dependent. That’s because of the one criteria for having a dependent is that the child live with you for more than half the year.
I do not file taxes because I collected worker’s comp. for 6 months and I’m not required to. My daughter lives with my fiance and I, he supports her, can HE claim her on his taxes ???
taxes,what if her mom gives me permission to claim her since i supported the baby thru the whole year.
Babygurl, unfortunately, just because you supported your god-daughter financially does not qualify you to claim her as a dependent. This baby would be a qualifying relative with respect to you, which means to get the dependent the child will need to live with you for an entire calendar year and cannot be a qualifying child of another taxpayer. As it stands, your god-daughter will likely meet the definition of a qualifying child with respect to the child’s mom. Now the the custodial parent can agree to release the dependent — but only to the noncustodial parent. So the way the law is written now, only the person who has actual custody of the child for more than half the year gets to claim the dependent.
My son’s ex-girlfriend has lived with me more than 1 year with her baby (my granddaughter), I pay all bills including food. I know I can claim the baby as a qualify child, can I claim her mother (my son’s ex-girlfriend) who has no job and has not paid me anything all year to live here?
I need some advice. I got married in 08. My stepson lives with us full time and stays with his dad one night a week on average. After my wife’s divorce, she transferred funds electronically to her account from his for quite a while ( I know sounds bad) after a while the ex caught on and confronted her about it. Rather than have her brought up on charges they verbally agreed that he would claim the child on his income taxes until the child was 14 or 15 to help pay back this debt. Its tax time and i feel i should be able to claim the child since he lives with us. What are the ramifications if i proceed with claiming him. Is it even worth the hassle and could he press any sort of charges? I believe given the living arrangement I technically should be allowed… How would something like this likely play out. The ex is a vendictive sort and given the circumstance i would hardly blame him. I found out this stuff after marrying.
I’ve been a stay at home dad for the whole year of 2008, taking care of 3 infants. Does my ex (still technically married) get to claim all 3 kids as dependents of hers and I get left high and dry? She is going to be filing soon…
Here it is…I support my girlfriend of 7 1/2 years…she made a mistake and slept with someone else and got pregnant. We are still together
and I support my girlfriend and the child %100, she does not work and our child is a special needs baby. Can I claim them both as dependents? The baby is 16 months currently?
ok like in my case i put my 2 kids on mine and also put head of house hold dad and i are not together but we had a verbal and i have text messages saying that i can claim them and i would give him money form it and now hes going to claim them thru the mail cause i E filed mine and what will happen is my question??
I need help. I am an 18 year old full time student at USC. I have two children, a 2 year old and a three year old. I live with my parents, and my boyfriend (which is the father of my children) also lives with me. I do not work but my boyfriend does and of course he claims both of the children in his taxes, however, last year we trusted my parents by giving them our informaiton so they can file his taxes, to our surprise they claimed one of the kids, and my boyfriend got less money than he should have.This year my boyfriend decided to do his own taxes, and now my dad is threatning to claim my daughter as a dependant anyways because of the fact that we live in their house. CAN HE DO THIS? I mean we pay rent, some utility bills, and they do not buy my kids stuff like diapers or clothes. But yet they still think they have the right to claim my daughter. What can I do?
I am a single mother of 2 boys. we all 3 live at home with my parents. i work a full time job and support my children as much as i can. My parents informed me that they are claiming my kids because we are staying here currently..I WAS PLANNING ON CLAIMING THEM, DO THEY HAVE THE RIGHT TO CLAIM THEM WITHOUT MY PERMISSION ?????
I have a situation I haven’t seen posted yet. My brother is 20 years old, and lives at home with mom. He joined the Navy Reserves and was gone for 5 months, Jan-June, at training. Mom gets no child support anymore. He’s lived with her over 6 months, but when it comes to support, he supports himself by paying rent, buying his own food, clothes, bills, etc. Therefore he doesn’t meet that criteria for a qualifying child. Can she claim him, or does he get to claim himself?
My husband and I have been separated since june 21, 2008. I have custody of both of our kids for 6months and 10 days as of december 31,2008. He doesn’t any pay child support. The kids used his address for summer school, because we lived out of the school district, but they lived with me. Did he have the right to claim one of the kids, because they used his address and it looks like they lived with him?
My daughters father and I have joint legal and physical custody, he has primary residence. I paid him $4400.00 in child support in seven months. She lives with him most of the year. Am I entitled to claim her? There is nothing in the custody order or support order that says I can’t. Please respond ASAP with an answer for me. I already claimed her for 2008, will I have too give the money to my ex?
My son will be 19 years old on 7/20/2009. His AGI for the 2008 tax year was $3621.02. He is a senior in high school but has worked since he was 15 years old. He lives in a legitamate apartment owned by us and pays us $100.00 monthly. I signed form 8332 in the year 1993 giving his father the right to claim him for all remaining tax years. My question is this: When is my son eligible to claim his own exemption and when does his father stop claiming him? He will be going to college in the fall.
My aunt moved to mexico due to not being able to be financially stable. Now my cousin is staying with a distant relative of theirs (dads cousin) for the last 3 years. Dad has never been in the picture (dont know where he is) And her uncle(?) I supposed thats what he will be of hers claimed her on his tax return and got audited due to lack of proof of relationship. What can be done to help prove the situation. My aunt drafted a letter and notarized it to give up her rights as a parent, but the laws are different in Mexico than here. Can he legally claim her? or is he at a loss here?
My daughter was married in July 2008 to the father of her 2 kids. He is incarcerated. My daughter’s tax return was rejected because his mother claimed him as a qualifying child for eic. His mother provides no support to him either monetarily or otherwise. She has only seen him 3 times in the past 4 years.My daughter sends him money to buy what he needs that the prison doesn’t provide. Shouldn’t she be able to claim him as opposed to his mother?
My daughter has a 3 year old child. In november she and her boyfriend split and she and my grandaughter now resides with me. She has always had custody of my grandaughter and we have a signed agreement that she was to take my grandaughter on her taxes this year. her ex does not pay support when she filed her taxes she was notified that her daughter had already been claimed. right or wrong how is this resolved.
I have been taking care of my god nephew 4years old since january 13,2008 and my god niece since her mother was 3mos pregant and I know still have both children but we have not went through the system or tranfered anything to my name I am now being reviewed what should I do
Rose, the rules for dependents are complicated. In this situation, both your daughter and her ex-boyfriend need to review the criteria for a qualifying child. An important factor here is that the child needs to reside in the same household as the taxpayer for more than half the year. If they broke up in November and if they lived together before that, it’s possible the child might have lived with both parents for more than half the year. In this case, you’ll need to move to the tie breaker tests, which awards the dependent to the parent with whom the child lived the longest. It sounds like your daughter would be entitled to the dependent under these tie-breaker tests. If that’s the case, then she will need to file her return on paper, and then respond to any letters from the IRS (which will arrive in about 6 to 12 months). The IRS will send letters to both parents and ask them to prove they are entitled to the dependent.
I have a difficult situation with claiming my daughter. Her mother and I are divorced and I have a 8332 form that indicates I can claim her in ALL EVEN numbered years.My daughter turned 19 yrs old in December. I provided her mother child support up until June at which time my daughter graduated from high school. My daughter and her boyfriend both lived in my home but only for 1 month. My daughters boyfriend and her have been living together in various households through out the past tax year. My daughter says she can “allow” her boyfriend to claim her as his dependent and I can not claim her. I thought that my 8332 form and my support through more than half the year would allow me to claim her.
How do I know who has the right to claim her at this point?
I was unaware of the new tax laws, I mean that’s what I pay H&R block for, right? I filed my taxes claiming my son for the earned income credit. His father whom I’ve never been married to and is the custodial parent, claims him for the child tax credit.I told my rep to file my sons social security number the same way we had since his birth. Unfortunately, my rep did not mention the changes in the law, and my son was claimed on both parts of my taxes. I am afraid That I will be facing contempt of court charges, and a felony. This sucks and who is responsible? edithmurdock@yahoo.com
I have 2 children/ never was married to their father. He received his w2’s 2 wks before I did and he claimed both the children. I am the sole provider for these children/ I also have full custody. The children live with me. The father has been in and out of the relationship for the last 2 years. I did not claim my two children, because I knew he did. Am I able to file an amendment? I did not realize that he probaly should not of been claiming the children. How can I fix this?
I don’t know much about these things, for I am new to the system. I have 1 child I am un-married. Though my child has always lived with me, since the day she was born on up until now she’ll be 3 tomorrow. Less than a year about my ex and I agreed to shared parenting time, yet she would be with me the majority of the time including: when she starts school and the agreement was that he could claim her as of the beginning of this year and every other year there after with my permission, yet he was suppose to had filed a 8332 with my consent and signature. Never did he claims my daughter any way! Even though she only visits him 4 days every other weekend, but my daughter does not live with hime, for she is not even on his lease. My question now “how is it possible for him to have that right?”
Comment 35 is wrong. Even if a CP waives the right to claim the dependent, he/she would still be elgible for HOH status AND EIC. The NCP would take the Child Tax Credit and the exemption.
Stacey,
He doesn’t have that right. The IRS gives the custodial parent the right to claim the child. I would claim the child anyways and he will get audited and have to pay the money back to the IRS. He can only claim the child if you sign IRS form 8332 and release the dependency exemption. It doesn’t matter who pays for the child’s support. As far as the IRS is concerned, the custodial parent is the one who has the child 51% of the time.
Jody,
You can and should file an amendment. It doesn’t matter that he filed first. When you both claim the children, the only thing that matters to the IRS is who the children are with more. The only thing that will suck is that while trying to figure the situation out, your refund may be delayed. He will end up owing the IRS, but at least he might learn that he needs your permission to release that right. This can be done on IRS form 8332.
Steve,
Currently in divorce preceedings, my wife left me in aug. of 2008. Filing before myself she claimed my 19 year old daughter as a dependent, leaving myself to pay fed. taxes. We were still legally married at the time. Court papers stated we were to file together. How do I file a dispute?
Erik, you are correct. You have a valid 8332 form in which the mother relinquished her right to claim the dependent in even years. So you are the only other person eligible to claim your daughter as a dependent, since your daughter would be a qualifying child for you but only a qualifying relative for the boyfriend, and the qualifying child rules always outweigh the qualifying relative rules.
Edith, simply amend your tax return to make the corrections. Your tax preparer should offer to do this free of charge or at a discounted rate since, apparently, he did not listen to you properly the first time.
Jody, yes you could amend your tax return to claim your two dependents. For that amendment I would attach copies of any documentation that supports your position, such as a child custody agreement. The IRS will audit the father’s tax return as well, and the IRS will likely rule in your favor and deny the dependents to the father.
Wendi, thanks for correcting my advice. I appreciate it.
David, I’m not a lawyer, so I cannot address the legal issues in your questions (such as whether two parties can be compelled to file a joint tax return). From a tax perspective, both spouses must agree to file jointly. So if she isn’t agreeing to file jointly, that leaves you with only one option: filing a separate return. You may or may not be eligible to claim your daughter. It sounds like the daughter lived with both spouses for more than half the year, so the next test is which spouse had the higher adjusted gross income. This is part of the tie-breaker tests under the qualifying child rules.
I am hoping someone can help me with this:
My two grandchildren have lived with me full time since Oct 2008. Their father (my son) and their mother were never married. Neither parent has given us so much as a quarter to help with supporting these children for the past year. Can I claim them as dependent children on my 2009 tax return?
so i think its totally bull that my fiance of over 3 years cant claim my 2 kids on his taxes. well he can claim them as dependents but not get the child tax credit and head of household credit. this is one of dumbest laws i have heard of. obviously a bush move. my fiance is the one taking care of my kids he makes enough money where i can stay at home with them. last year for taking care of them he should have recieved like $3000 back at least i usually got about $4000. so instead he gets $788 back? when he supported them all year? wow guess its time to get married cuz the people who make laws r totally bogus. its total bull. the movie stars hardly pay any taxes. they should have to sign a paper saying every year they will give $1 million for charity or help with cure for cancer. its ridiculous. all americans r struggling and my fiance who is the support of my kids cant claimthem even though my parents claimed my son one year. its bull.
Ok, so what if an unmarried couple has a child, the man moves out and has not paid half of his sons living exspenses what so ever. The mothers mother is the one paying for all the exspenses and will be claiming the child. If the father claims first will he get in trouble? Because if he is not the one that really took care of him for the 8 months that he lived in the house and did not pay any bills or bought any thing the child needs than it would not be fair for him to claim him right? It is very confusing but the guy is only wanting the money out of it not worried about anything else.
I have a question….My three boys and I have been living with my Fiance since Feb of 2008. We have a daughter together. I quit work in July of 08 to stay at home with the kids. I clamied the boys them last year and he has claimed our daughter since she was born. Will he be able to claim my boys as well this year since I was not working and he paid for all expenses?
My ex-wife, and I have 50/50 custody. It court we made a deal we would claim other year! So this year 2009 is her’s. But my daughter has moved in with me FULL TIME! I pay car insurance, room, and board, medical ect. My daughter who now is 18 was told by her Mom that your Dad cannot claim you! My daughter who told her that Dad is paying for everything! So basically it over half the year. My daughter said she thinks it fair that I should claim her since I am paying for everything! Of course she is 18! So that should over ride the court order as too when she was 14! As she is no longer a minor! She can decide! Plus she has made over $5,000 at a part time job. So if my daughter WANTS to let me claim her on my taxes, doesn’t she have a right at age 18. Does her turning 19 give her that choise as well? Thank You Kerry
I have an 18 year old son that is in high school. He is now working his first full time job. He lives with me (his mom), and is claimed on his father’s tax return.
Questions: (1) For his withholding W4, should he claim Zero or exempt or 1?