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Who can claim the dependent?

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Chette Mickler

Junior Member
What is the name of your state (only U.S. law)? PA (Original court order is in NY).
I divorced 7 years ago. I have two children and agreed in our divorce agreement that my ex husband would claim my daughter and I would claim my son on our taxes. Two years ago my ex-husband became incacerated (for 9 years) and only paid 4 months of support in 2009. His mother is his POA and when she filed his taxes she listed my daughter as a dependent on his return. She did this to spite me, as she does not like me. I contacted her after receiving a letter of ammendment from the IRS and she told me she did it because my ex paid support in 2009. But he only paid 4 months worth. So my question is being that it is in the divorce agreement can she do this? Or can I fight it since he hadn't paid the full year, not to mention he won't be paying for the next nine years?
 


ecmst12

Senior Member
Does your divorce agreement state that he must be current on support in order to claim the child? If not, then you have to let him claim her.
 

OHRoadwarrior

Senior Member
She could not legally do this without you giving her form 8332 for the tax year. I would request he give you written authorization to claim the exemption in the future, assuming no conditions in your order allow you to do so otherwise. You will probably need to inform the IRS of her claiming the credit without the form, otherwise you may be barred due to falsely claiming it this time. LDiJ can probably give more specific advise on this. I have never had to deal with a credit dispute.

http://www.irs.gov/pub/irs-pdf/f8332.pdf
 

FlyingRon

Senior Member
She could not legally do this without you giving her form 8332 for the tax year. I would request he give you written authorization to claim the exemption in the future, assuming no conditions in your order allow you to do so otherwise. You will probably need to inform the IRS of her claiming the credit without the form, otherwise you may be barred due to falsely claiming it this time. LDiJ can probably give more specific advise on this. I have never had to deal with a credit dispute.

http://www.irs.gov/pub/irs-pdf/f8332.pdf
Of course, the IRS won't care unless you BOTH try to use the exemption in the same year.
 

Chette Mickler

Junior Member
Does your divorce agreement state that he must be current on support in order to claim the child? If not, then you have to let him claim her.
No it doesn't state that and that is what I'm concerned about. Ultimately she will have to pay me something out of it as the divorce settlement orders him to pay 2/3 of unreimbursed medical expenses, which would be more than the tax refund. I just wanted to know before I contact the IRS or make any ammends. I think I'm going to sit tight until they contact me again.
 

TheGeekess

Keeper of the Kraken
Read OP's post. This happened this year. IRS will now deem her to be ineligible to claim for a few years.
How do you figure that? :rolleyes:


OP:
Where do the children reside?

Besides claiming the dependent, did Granny also claim EIC/child care credit on your daughter?

If the children live primarily with you, then Granny CANNOT claim HOH/EIC/child care credit on any of the children at any time. She can use the dependent deduction with a signed 8332.
 

Isis1

Senior Member
What is the name of your state (only U.S. law)? PA (Original court order is in NY).
I divorced 7 years ago. I have two children and agreed in our divorce agreement that my ex husband would claim my daughter and I would claim my son on our taxes. Two years ago my ex-husband became incacerated (for 9 years) and only paid 4 months of support in 2009. His mother is his POA and when she filed his taxes she listed my daughter as a dependent on his return. She did this to spite me, as she does not like me. I contacted her after receiving a letter of ammendment from the IRS and she told me she did it because my ex paid support in 2009. But he only paid 4 months worth. So my question is being that it is in the divorce agreement can she do this? Or can I fight it since he hadn't paid the full year, not to mention he won't be paying for the next nine years?
i would definitely high tail it back to court and request that only you claim the children until further orders. also request that he cannot claim the children until he becomes current with the full arrears.

it might not work for this year, and you may have to pay that money back...

but definitely look into getting a lein on his refunds. at least you might get some arrears paid back in the furture. you should file with the state child support agency for that.
 

Chette Mickler

Junior Member
i would definitely high tail it back to court and request that only you claim the children until further orders. also request that he cannot claim the children until he becomes current with the full arrears.

it might not work for this year, and you may have to pay that money back...

but definitely look into getting a lein on his refunds. at least you might get some arrears paid back in the furture. you should file with the state child support agency for that.
He hasn't or won't be filing any income taxes for the next nine years since he is incarcerated. He became incarcerated in 2009. By time he gets out he won't be able to claim either child since they will be adults. I will be going back to court anyway as you suggested just to cover myself. Thanks for the advice.
 

Chette Mickler

Junior Member
How do you figure that? :rolleyes:


OP:
Where do the children reside?

Besides claiming the dependent, did Granny also claim EIC/child care credit on your daughter?

If the children live primarily with you, then Granny CANNOT claim HOH/EIC/child care credit on any of the children at any time. She can use the dependent deduction with a signed 8332.
The children live and have always lived with me. I have always had full custody. They've never lived with the grandmother -- she doesn't even live in the same state. She is POA of my ex and was responsible for filing his taxes in 2009. She claimed my daughter on his return. This is why I don't understand why she thought she could do this, other than the divorce settlement.
 

LdiJ

Senior Member
What is the name of your state (only U.S. law)? PA (Original court order is in NY).
I divorced 7 years ago. I have two children and agreed in our divorce agreement that my ex husband would claim my daughter and I would claim my son on our taxes. Two years ago my ex-husband became incacerated (for 9 years) and only paid 4 months of support in 2009. His mother is his POA and when she filed his taxes she listed my daughter as a dependent on his return. She did this to spite me, as she does not like me. I contacted her after receiving a letter of ammendment from the IRS and she told me she did it because my ex paid support in 2009. But he only paid 4 months worth. So my question is being that it is in the divorce agreement can she do this? Or can I fight it since he hadn't paid the full year, not to mention he won't be paying for the next nine years?
What do you mean by "letter of amendment?"

Did you get the standard letter stating that there had been a duplicate claim for the child and whoever should not have claimed the child should amend their return?

If so, then despite what the divorce decree states you are the only one legally allowed to claim the child unless you have voluntarily provided dad a signed form 8332.

What happens is that if neither of you amend your return then the IRS will investigate, and since the children do not live with dad and he cannot prove that they do, (and he doesn't have a signed form 8332) the IRS will require HIM to pay back the excess refund, not you. Then it would be up to him to take you to court for contempt.

In my opinion there is no reason for you to take this issue back to court. Dad will not be able to file any future tax returns claiming he children therefore it would be a worthless exercise.
 

Chette Mickler

Junior Member
What do you mean by "letter of amendment?"

Did you get the standard letter stating that there had been a duplicate claim for the child and whoever should not have claimed the child should amend their return?

If so, then despite what the divorce decree states you are the only one legally allowed to claim the child unless you have voluntarily provided dad a signed form 8332.

What happens is that if neither of you amend your return then the IRS will investigate, and since the children do not live with dad and he cannot prove that they do, (and he doesn't have a signed form 8332) the IRS will require HIM to pay back the excess refund, not you. Then it would be up to him to take you to court for contempt.

In my opinion there is no reason for you to take this issue back to court. Dad will not be able to file any future tax returns claiming he children therefore it would be a worthless exercise.
Yes that is exactly the letter I received. I never provided an 8332 since I didn't even know I needed to, nor did he ever ask for one. For the 5 years prior to his incarceration he just claimed her and it was okay with me as we agreed to that. I still haven't heard anything back from the IRS, but I'm sure the day is soon approaching.
I don't understand what you meant by he could take me to court for contempt. What am I in contempt of?
Thanks for your advice -- it was helpful and put my mind at ease!
 

OHRoadwarrior

Senior Member
What she is saying is dad, being incarcerated, will not be able to take you to court for claiming kids in 2009. The IRS, if no one amends, will decide in your favor for 2009, because you were custodial and provided no 8332. Dad will not be filing future returns, since he is in jail, so taking him to court is a mute point. He will have no income or reasonable basis to object to you claiming kiddos.
 

TinkerBelleLuvr

Senior Member
What is the name of your state (only U.S. law)? PA (Original court order is in NY).
I divorced 7 years ago. I have two children and agreed in our divorce agreement that my ex husband would claim my daughter and I would claim my son on our taxes. Two years ago my ex-husband became incacerated (for 9 years) and only paid 4 months of support in 2009. His mother is his POA and when she filed his taxes she listed my daughter as a dependent on his return. She did this to spite me, as she does not like me. I contacted her after receiving a letter of ammendment from the IRS and she told me she did it because my ex paid support in 2009. But he only paid 4 months worth. So my question is being that it is in the divorce agreement can she do this? Or can I fight it since he hadn't paid the full year, not to mention he won't be paying for the next nine years?
You need to answer the IRS's letter and state that you are the custodial parent. Now, if DAD wants to file in court to get you to agree to the court order, he can.

She technically needs to have the divorce decree changed to allow her to file for both children. Dad needs to file to have the child support order reduced otherwise he is going to have a very large arrearage to deal with.
 

FlyingRon

Senior Member
You need to answer the IRS's letter and state that you are the custodial parent. Now, if DAD wants to file in court to get you to agree to the court order, he can.

She technically needs to have the divorce decree changed to allow her to file for both children. Dad needs to file to have the child support order reduced otherwise he is going to have a very large arrearage to deal with.
True. There's the IRS and there's the court. The IRS wants either proof that the IRS rules are applied (child living with the parent claiming the deduction or the 8332). The court may not find her tactics interesting either. Just because one party violates the agreement doesn't authorize violations on the other party.
 

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