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Please help! Tax question re: claiming children

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dmari posted 5/14/2013 01:33 AM

Well, just when it seemed my stbx couldn't sink any lower, he has.

My accountant phoned me today to inform me that the reason why my taxes got rejected was because stbx claimed my DS14.

My stbx and I had a verbal agreement to each claim child for 2012: he was to claim DD17 and I was to claim DS14.

Now my accountant is going to file using my DD17 ss# to see if he also claimed her.

So, I did some research on the internet and here was a suggestion:
1. Mail my taxes in and the children's duplicate ss# will be flagged by the IRS and letters will be sent to stbx and I requesting proof to who can claim the children.
~I have temporary physical custody per court order.
~He is entitled to limited visitations only but children do not want to see him and have not seen him.
~I did not sign Form 8332
Because of that, do you think the IRS will allow me to claim them? Have any of you been in a similar predicament? What did you do? What was the outcome? What should I do or should have done differently?

I am wondering if I should file a form 3949-A: report suspected tax fraud (false exemptions/deductions).

Warning ... here comes a vent ... When am I going to be fed up with his completely fucked up moral compass? What the fuck? You walk out of our lives but you want to claim the children on your taxes? Really? How can you call yourself a man? Spineless worthless useless piece of shit! Fuck you!

It's funny but I'm not as upset as I was last week when I found out he hasn't paid for his half of the children's uncovered medical bills. I was so hurt last week but now I feel "eh ... not surprised".

[This message edited by dmari at 1:35 AM, May 14th (Tuesday)]

ButterflyGirl posted 5/14/2013 02:10 AM

My timeline regarding this:

Beginning of February 2013, I ask STBX if we can file jointly for the tax deductions, credits, etc., that we do not get by filing separately. He repeatedly skirts the subject.

Middle of February 2013, I call the IRS to determine who can claim the kids. A few questions in, they ask who had them the majority of the overnights for 2012, which was me, so the questioning stops there, and the IRS says I'm the one who can claim them. I begin asking my former L about this, and he keeps telling me to wait till mediation and we will come up with something then (like each claiming one kid, etc.), and STBX continues to skirt the subject.

Middle of March 2013, at mediation I find out he claimed both children in early February without telling me. Both my L and the mediator tell me to just go ahead and claim the children as well, so I do. I was not able to file electronically because of the social security numbers of the children already being claimed, so I file my taxes by mail.

I expect to hear from the IRS soon regarding this, but I'm confident I filed my taxes correctly, and I may even get some recourse for the deductions and credits we lost by him doing this.

My vent: Fuck you asshole! You lost both of us money just to spite me?? We could have put that extra money in a college fund for the kids, took them to an amusement park, anything but give it to the damned government. You make us both lose money just to spite me??? Fuck you!!! Enjoy re-doing your taxes you slimy POS!!

Good luck dmari. I'm pretty confident if you had them the majority of the overnights in 2012 and there was not a written agreement in place, you are the one who can claim them. FTG..

dmari posted 5/14/2013 02:20 AM

ButterflyGirl: Thank you Thank you Thank you!!! Your response will help me sleep tonight. Thank you so much!!

Yes, I've had them the majority of nights since he walked out in October. I never thought of calling the IRS so I will do that.

I'm sorry your stbx pulled the same shit. They are idiots. FTG!!

stronger08 posted 5/14/2013 03:47 AM

dmari, this happens more often than not. Butterfly is correct. The parent who has physical custody the longest has the right to claim them. Technically you could and should claim both of the children. He has tried to go behind your back and beat you to the punch by claiming the kids. I bet ya he thought that was a brilliant and original idea. What an asshole. Did he really think the IRS would not put a stop to that game ? File your forms and get your returns. From now on all verbal agreements should be off the table. I pay a hefty CS nut every month and I have never been able to claim my DS. And Ive never even tried. Im sure he will try and intimidate you by threatening you with non payment of CS. If he does that go to CS enforcement in your state and have it garnished directly from his pay. There are laws designed to get whats due the children. And keep in mind that CS is for the kids, not you. So dont feel sorry for his dumb ass.

SoldieringOn posted 5/14/2013 07:44 AM

IRS Publication 501 spells this one out.

Children of divorced or separated parents (or parents who live apart). In most cases, because of the residency test, a child of divorced or separated parents is the qualifying child of the custodial parent. However, the child will be treated as the qualifying child of the noncustodial parent if all four of the following statements are true.
1.The parents:

a.Are divorced or legally separated under a decree of divorce or separate maintenance,

b.Are separated under a written separation agreement, or

c.Lived apart at all times during the last 6 months of the year, whether or not they are or were married.

2.The child received over half of his or her support for the year from the parents.

3.The child is in the custody of one or both parents for more than half of the year.

4.Either of the following statements is true.

a.The custodial parent signs a written declaration, discussed later, that he or she will not claim the child as a dependent for the year, and the noncustodial parent attaches this written declaration to his or her return. (If the decree or agreement went into effect after 1984 and before 2009, see Post-1984 and pre-2009 divorce decree or separation agreement , later. If the decree or agreement went into effect after 2008, see Post-2008 divorce decree or separation agreement , later.)

b.A pre-1985 decree of divorce or separate maintenance or written separation agreement that applies to 2012 states that the noncustodial parent can claim the child as a dependent, the decree or agreement was not changed after 1984 to say the noncustodial parent cannot claim the child as a dependent, and the noncustodial parent provides at least $600 for the child's support during the year.

Custodial parent and noncustodial parent. The custodial parent is the parent with whom the child lived for the greater number of nights during the year. The other parent is the noncustodial parent.

If the parents divorced or separated during the year and the child lived with both parents before the separation, the custodial parent is the one with whom the child lived for the greater number of nights during the rest of the year.

A child is treated as living with a parent for a night if the child sleeps:
•At that parent's home, whether or not the parent is present, or

•In the company of the parent, when the child does not sleep at a parent's home (for example, the parent and child are on vacation together).

Equal number of nights. If the child lived with each parent for an equal number of nights during the year, the custodial parent is the parent with the higher adjusted gross income (AGI).

December 31. The night of December 31 is treated as part of the year in which it begins. For example, December 31, 2012, is treated as part of 2012.

Emancipated child. If a child is emancipated under state law, the child is treated as not living with either parent. See Examples 5 and 6.

Absences. If a child was not with either parent on a particular night (because, for example, the child was staying at a friend's house), the child is treated as living with the parent with whom the child normally would have lived for that night, except for the absence. But if it cannot be determined with which parent the child normally would have lived or if the child would not have lived with either parent that night, the child is treated as not living with either parent that night.

Parent works at night. If, due to a parent's nighttime work schedule, a child lives for a greater number of days, but not nights, with the parent who works at night, that parent is treated as the custodial parent. On a school day, the child is treated as living at the primary residence registered with the school.

If the kids lived with you for the majority of the nights for the year, you get to claim them. Kinda plain spoken. If its an equal number of nights then it is the person with the highest income.

When you find out what the answer is, choose your battles wisely. If you legally have the upper hand it may be more favorable to demand a quick cash settlement with him (like that day quick, or you file your documentation with the IRS) I'd recommend doing your math ahead of time. Bringing the IRS into a divorce or separation battle raises the stakes. Be mentally ready for that.

[This message edited by SoldieringOn at 8:00 AM, May 14th (Tuesday)]

scotslass posted 5/14/2013 08:41 AM

My divorced ex-spouse has done this the last two tax years.

Each time my were electronically kicked back and I had to file a paper return. My CPA instructed me to include a copy of my divorce decree with an explanatory letter.

I did this last year and mine were accepted. I did the same again this year but my letter included my ex's name, home address, social security number and explaining in full that this was the second year in a row that he has done this. I pray that it will now put and end to this nonsense.

I do have an email from him that he was doing this - so I have a paper trail. I had emailed him that there was a legal paper that I had to sign in order to for him to take any of the children on his taxes.

Like I said I have a convincing paper trail to show how he disregarded the IRS outlines.

MovingUpward posted 5/14/2013 08:52 AM

If DD turned 17 before 2013 then I wouldn't be surprised if he swapped kids as DD17 would be ineligible for the Child Tax Credit but DS14 is. That could be up to an extra $1000 back.

dmari posted 5/14/2013 10:55 AM

Thank you!! You are the most wisest group of friends ever!! I am feeling way more confident. Thank you! Love you guys, dmari

Jayne Doe posted 5/14/2013 10:59 AM

Dmari - my attorney has spelled this out for him that I get to claim our daughter.

Have your attorney do the same.
Then his attorney will get it and he can fight it if he wants.

But get it legally put on a piece of paper.

LadyQ posted 5/14/2013 19:02 PM

X texted me shortly after the first of the year, beat around the bush a bit, and finally came out with it: which kids did he get to claim. I told him none. IRS Pub 501 spells it out clearly that unless there is verbiage in the divorce decree, the custodial parent claims the children. He got miffed and texted back that "some divorced couples split the exemptions". To which I replied, yes they do.

He did isn't want anything to do with "writing" our divorce, so I had to do it all, and I had it written to my advantage. His bad choice.

persevere posted 5/14/2013 21:30 PM

Follow through and I agree that you should win, and no more "splitting the kids". Whoever legally should claim them, claims them. He forfeited any of that by going behind your back. FTG.

dmari posted 5/14/2013 22:25 PM

Thank you so much for responding everyone!!

It was confirmed by my accountant that he did claim both children. Asswipe.

So I will be filing through the mail and wait for IRS to contact me. I feel confident that I will "win". I will definitely take everyone's advice and claim the kids from now on because it is legally my right.

Thank you!

peridot posted 5/14/2013 23:15 PM

I go through this every year with my XH. I usually beat him to it but this year someone(him or the whore probably)filed a return with my social so I couldn't file electronically. I mailed my return in and claimed both my kids. I think he did it to keep me from claiming my son before he could.

He is allowed the credit for my son if he is current on CS and out of pocket expenses, which he isn't. He still tries to use my son every year even though he's not supposed to.

From what the IRS told me, they will still pay you both the amount of refund your supposed to get. Then later this year, probably after Oct, you will both receive a letter in the mail asking for proof that you are allowed to claim the kids.

From what I read on here it looks like you are allowed the credit for the kids and not him.

Once the IRS is done with their investigation they will send the guilty parent a letter telling them to repay what money they got from the child. They will also have to pay interest and penalties. The IRS could also block him from being able to claim the kids again for so many years.

ButterflyGirl posted 5/14/2013 23:15 PM

It was confirmed by my accountant that he did claim both children. Asswipe.

Ugh, asswipe for sure.

I bet ya he thought that was a brilliant and original idea. What an asshole.

For real Stronger. These guys are real Einsteins, eh?

So I will be filing through the mail and wait for IRS to contact me. I feel confident that I will "win". I will definitely take everyone's advice and claim the kids from now on because it is legally my right.

That's great. I forgot to add that I already received my refund through the mail. I was thinking I would just wait to see how the IRS will handle this once they figure it out, but I suppose a call to them wouldn't hurt just to explain what happened, or perhaps fill out one of those "suspected tax fraud" forms you mentioned..

Anyhoo, good luck to you again! Fuck.Both.These.Guys!!!

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