Claiming a child as dependant

[Rwedunyet]

What is the name of your state (only U.S. law)? NC

Unmarried parents have a 1 year old child. The child has lived with the father for 7 months out of the year, with no financial support from the mother.

Dad (My son) went to file his taxes (with my help), and his return was rejected because the child had already been claimed by the mother.

Is there anything he can do about this?

 

[Zigner]

What is the name of your state (only U.S. law)? NC

Unmarried parents have a 1 year old child. The child has lived with the father for 7 months out of the year, with no financial support from the mother.

Dad (My son) went to file his taxes (with my help), and his return was rejected because the child had already been claimed by the mother.

Is there anything he can do about this?

Your son can file a paper return and the respond to the notice(s) that he receives about the duplicate filing.

ETA: Is your son the legal father?

 

[Rwedunyet]

Your son can file a paper return and the respond to the notice(s) that he receives about the duplicate filing.

ETA: Is your son the legal father?

Yes, He is the legal father, is on the birth certificate and signed the affidavit of paternity.

When the IRS sees that two people have claimed the same child, they will want proof of who she has lived with, right?

Mother and child both lived with my son for the entire month of January. Mother did not work, was homeless and son supported both of them.

DSS removed the child from the mother's care in June. Child was placed with father per a safety plan (consented by the mother, no court action taken).

What documentation can he use to prove to the IRS that this child is his dependent for this year?

 

[introvert]

Yes, He is the legal father, is on the birth certificate and signed the affidavit of paternity.

When the IRS sees that two people have claimed the same child, they will want proof of who she has lived with, right?

Mother and child both lived with my son for the entire month of January. Mother did not work, was homeless and son supported both of them.

DSS removed the child from the mother's care in June. Child was placed with father per a safety plan (consented by the mother, no court action taken).

What documentation can he use to prove to the IRS that this child is his dependent for this year?

Prior to the child's placement with Dad, was there a court order which stated who claimed the child for tax purposes?

 

[Rwedunyet]

There are no court orders concerning this child, at the moment.

The only documentation pertaining to any type of custody is the statement from DSS where the mother consented to the safety plan last June, which place the child in my son's "protective custody upon consent of the mother".

Would that document be sufficient for the IRS?

 

[FlyingRon]

As pointed out, he needs to file a paper return. The fact that the child's SSN appears on the earlier filed ex's return blocks electronic filing. What will happen next is both parties will get a letter indicating the double claim and asking them to fix it (a 1040X will graciously be provided). If that doesn't happen, you'll get a second letter saying the same thing. After that, you'll have some explanation due to the IRS. I'd wait until the first round happens (possibly if you can sanely communicate with the ex that she is not entitled to the exemption...the child must spend the majority of nights with who claims him).

 

[Rwedunyet]

THank you!

Thank you so much!!!!! Thank you thank you!

and thank you! (all of you)

 

[davew128]

Prior to the child's placement with Dad, was there a court order which stated who claimed the child for tax purposes?

As the parents are unmarried, it is wholly irrelevant. The ONLY rule that matters is who is the custodial parent for 183 days.

 

[introvert]

As the parents are unmarried, it is wholly irrelevant. The ONLY rule that matters is who is the custodial parent for 183 days.

The support order can grant the exemption to the NCP. The "special rule" that applies to divorced and separated parents also applies to parents who were never married. Irrelevant in this situation because there's no order, not because the parents are unmarried.

 

[davew128]

The support order can grant the exemption to the NCP. The "special rule" that applies to divorced and separated parents also applies to parents who were never married. Irrelevant in this situation because there's no order, not because the parents are unmarried.

Read IRC 152(e) and post back as to why you're wrong.

The "special rule" doesn't do what you think it does and doesn't apply to unmarried parents under ANY circumstances.

 

[Rwedunyet]

"(e) Special rule for divorced parents, etc.
(1) In general Notwithstanding subsection (c)(1)(B), (c)(4), or (d)(1)(C), if—
(A) a child receives over one-half of the child’s support during the calendar year from the child’s parents—
(i) who are divorced or legally separated under a decree of divorce or separate maintenance,
(ii) who are separated under a written separation agreement, or
(iii) who live apart at all times during the last 6 months of the calendar year, and—" (copied from : https://www.law.cornell.edu/uscode/text/26/152 )

OK, since I am watching and learning from this little debate, I wanna play too!

In reading IRC 152(e), I see the "special rule" for divorced parents relying on the three contingencies listed as (i), (ii) and (iii).

(i) and (ii) obviously pertain to parents who are "divorced or legally separated". However, at the end of (ii), it says "or" before going on to (iii) which speaks of parents who live apart at all times during the last 6 months...".

He and the mother are not divorced or legally separated, but since they have never lived together, they have lived apart at all times during the last six months.

Why would this not qualify them for the (iii) portion of the qualifying "or" statement?

 

[davew128]

"(e) Special rule for divorced parents, etc.
(1) In general Notwithstanding subsection (c)(1)(B), (c)(4), or (d)(1)(C), if—
(A) a child receives over one-half of the child’s support during the calendar year from the child’s parents—
(i) who are divorced or legally separated under a decree of divorce or separate maintenance,
(ii) who are separated under a written separation agreement, or
(iii) who live apart at all times during the last 6 months of the calendar year, and—" (copied from : https://www.law.cornell.edu/uscode/text/26/152 )

OK, since I am watching and learning from this little debate, I wanna play too!

In reading IRC 152(e), I see the "special rule" for divorced parents relying on the three contingencies listed as (i), (ii) and (iii).

(i) and (ii) obviously pertain to parents who are "divorced or legally separated". However, at the end of (ii), it says "or" before going on to (iii) which speaks of parents who live apart at all times during the last 6 months...".

He and the mother are not divorced or legally separated, but since they have never lived together, they have lived apart at all times during the last six months.

Why would this not qualify them for the (iii) portion of the qualifying "or" statement?

I suppose that situation might work for the qualifier "or".

Still need the custodial parent to sign the form though for the non-custodial parent to legally claim the child, and thats highly unlikely.

 

[introvert]

I suppose that situation might work for the qualifier "or".

Still need the custodial parent to sign the form though for the non-custodial parent to legally claim the child, and thats highly unlikely.

Although the only reference I can find in IRC 152 is the previously mentioned "or", IRS Publication 17 specifically includes parents who were never married. It should be highly likely for the CP to sign Form 8332 if a court order requires it.

 

[davew128]

Although the only reference I can find in IRC 152 is the previously mentioned "or", IRS Publication 17 specifically includes parents who were never married. It should be highly likely for the CP to sign Form 8332 if a court order requires it.

Obviously you've never prepared tax returns or dealt with split up parents claiming dependents.

 

[LdiJ]

Read IRC 152(e) and post back as to why you're wrong.

The "special rule" doesn't do what you think it does and doesn't apply to unmarried parents under ANY circumstances.

Yes it does Dave. Sorry, but you are wrong on that one. The custodial parent is the parent with whom the child spent the most overnights during the year. That parent may give a signed form 8332 to the other parent to claim the child if that parent chooses to do so. It doesn't matter if they are married or unmarried. What matters is that they did not live together.

Of course, they can be court ordered to do so as well.