Unmarried parents both claimed child


M

MAEscourse

My ex and I seperated before the birth of my son, never
married. My son now 2yrs old (second tax season) His father
decided to claim for him without consulting me. My son lives
with me and visits w/ his father maybe once a week. I feel I
have the right to claim my son since my household is my
son's primary residence. Now that I have claimed his as
well, how will this tie-breaker work? And what kind of
documentation do I use to prove I should claim him?
 
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P

Phil Marti

My ex and I seperated before the birth of my son, never
married. My son now 2yrs old (second tax season) His father
decided to claim for him without consulting me. My son lives
with me and visits w/ his father maybe once a week. I feel I
have the right to claim my son since my household is my
son's primary residence. Now that I have claimed his as
well, how will this tie-breaker work?
The parent with more physical custody during the year
controls the personal exemption and child tax credit. From
your stated facts, that's you.
And what kind of documentation do I use to prove I should
claim him?
IRS will tell you when they get to processing the second
(yours or your ex's) return.
 
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A

A.G. Kalman

My ex and I seperated before the birth of my son, never
married. My son now 2yrs old (second tax season) His father
decided to claim for him without consulting me. My son lives
with me and visits w/ his father maybe once a week. I feel I
have the right to claim my son since my household is my
son's primary residence. Now that I have claimed his as
well, how will this tie-breaker work? And what kind of
documentation do I use to prove I should claim him?
The determination as to whom can claim the 2 year old turns
on which parent had custody for more than half the year (at
least 183 days in 2006). It sounds as though that is you.
If he already e-filed, then you will have to file a paper
return (your e-file would get rejected as the SS# for the
dependent is already in the system as claimed). When the IRS
gets your return it will eventually trigger letters to the
both of you. You both will then have to substantiate the
number of days of custody. How you do this depends on many
factors. Who cares for the child during the day? Do you
work and put the child in day care or are you a stay at home
mom? Does someone such as a relative care for the child
when you go to work? Does he work? Does he live nearby? Do
you have friends that can bear attest to the number of days
the child has spent with you?
 
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D

Dick Adams

My ex and I seperated before the birth of my son, never
married. My son now 2yrs old (second tax season) His father
decided to claim for him without consulting me. My son lives
with me and visits w/ his father maybe once a week. I feel I
have the right to claim my son since my household is my
son's primary residence. Now that I have claimed his as
well, how will this tie-breaker work? And what kind of
documentation do I use to prove I should claim him?
Your feeling is consistent with the Internal Revenue Code.
You need to prove that you were the custodial parent and
primary caregiver. If you have physical custody, that's
pretty much a slam dunk unless there are issues you haven't
disclosed.

If you want to be nice to your son's father, tell him he
should file an amended return or he will be part of an IRS
audit of the situation. It's really not an audit, but the
word 'audit' evokes fear in deep into the souls of even the
most macho of men. <devious smile>

Dick
 
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J

John D. Goulden

My ex and I seperated before the birth of my son, never
married. My son now 2yrs old (second tax season) His father
decided to claim for him without consulting me. My son lives
with me and visits w/ his father maybe once a week. I feel I
have the right to claim my son since my household is my
son's primary residence. Now that I have claimed his as
well, how will this tie-breaker work? And what kind of
documentation do I use to prove I should claim him?
The tie-breaker rules are pretty clear on this; if your son
lived with you more than half the year, he's yours to claim.
Since you both claimed him, you will both be audited by the
IRS. Rather than guess as to what kind of documentation you
will need to prove that you were the custodial parent, I
would recommend that you call the advocate at your local IRS
office with that question. The advocate can either answer
your question or direct you to someone who can. Be prepared
to spend some time on hold :)
 
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N

Nan, EA in LA

My ex and I seperated before the birth of my son, never
married. My son now 2yrs old (second tax season) His father
decided to claim for him without consulting me. My son lives
with me and visits w/ his father maybe once a week. I feel I
have the right to claim my son since my household is my
son's primary residence. Now that I have claimed his as
well, how will this tie-breaker work? And what kind of
documentation do I use to prove I should claim him?
Parent with physical custody has the right to claim the
child. Period. IRS established that rule years ago. Your
"ex" is in trouble.

Nan, EA in LA.
 
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Herb Smith

My ex and I seperated before the birth of my son, never
married. My son now 2yrs old (second tax season) His father
decided to claim for him without consulting me. My son lives
with me and visits w/ his father maybe once a week. I feel I
have the right to claim my son since my household is my
son's primary residence. Now that I have claimed his as
well, how will this tie-breaker work? And what kind of
documentation do I use to prove I should claim him?
In a situation like this, where the child is a qualifying
child of both parents, the first tie-breaker rule is that
the exemption goes to the parent who had PHYSICAL CUSTODY of
the child for the greater amount of the year. That sounds
like you. If you both claim the child, the IRS will notice
and send each of you a letter asking for substantiation of
your claim(s). Be prepared to show documentation that the
child lived with you (medical records, day care receipts,
neighborhood witnesses, etc) when and if asked.
 
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H

Howard

Herb Smith said:
In a situation like this, where the child is a qualifying
child of both parents, the first tie-breaker rule is that
the exemption goes to the parent who had PHYSICAL CUSTODY of
the child for the greater amount of the year.
Hi Herb.. Thanks for that.. Now what if there was a divorce
decree involved that entitles the exemption to the parent
who does not have custody ?

Can the custodial parent still claim Head of Household
status without the dependency expemtion ? All this while the
non-custodial parent also files head of household with the
dependancy exemption entitled from the divorce decree..
 
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H

Howard

Nan said:
Parent with physical custody has the right to claim the
child. Period. IRS established that rule years ago. Your
"ex" is in trouble.
Nan I don't think that is always the case. A parent could
have physical custody, and not the right to claim the child
as a dependant per a divorce decree. The parent with custody
has the right to file head of household and claim child and
dependant care expenses, and the EIC if applicable.

But the non-custodial parent claims the dependency exemption
and the child tax credit. Even if that non-custodial parent
is single or Married, they would file single with a
dependant, or Married with a dependant, but not as head of
household.

Someone correct me if I am wrong.
 
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P

Phil Marti

Nan I don't think that is always the case. A parent could
have physical custody, and not the right to claim the child
as a dependant per a divorce decree. The parent with custody
has the right to file head of household and claim child and
dependant care expenses, and the EIC if applicable.

But the non-custodial parent claims the dependency exemption
and the child tax credit. Even if that non-custodial parent
is single or Married, they would file single with a
dependant, or Married with a dependant, but not as head of
household.
It depends on whether the divorce decree includes all the
required information for the custodial parent to cede the
dependency exemption (and child tax credit--they go
together) to the noncustodial parent. If it does, the
noncustodial parent gets the exemption. If it doesn't,
without a signed 8332 or equivalent statement from the
custodial parent, it goes to the custodial parent.

See Publication 501.
 
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Herb Smith

Hi Herb.. Thanks for that.. Now what if there was a divorce
decree involved that entitles the exemption to the parent
who does not have custody ?

Can the custodial parent still claim Head of Household
status without the dependency expemtion ? All this while the
non-custodial parent also files head of household with the
dependancy exemption entitled from the divorce decree..
IF there were a divorce decree (original post indicated a
never- married situation) awarding the dependency exemption
to the noncustodial parent, the custodial parent would be
required (by the court) to sign a form 8332 authorizing
this. The IRS is not a party to your divorce decree and does
not have to honor such a condition unless the form is signed
and attached to the return of the noncustodial parent.

The non-custodial parent CANNOT claim the Head of Household
status (for obvious reasons).
 
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