Thoughts?

[DawnPlusTwo]

Oklahoma.

Background: I have sole physical/legal custody of Dad and I's 17 month old son. We went to court in May 09 to establish paternity, custody, visitation, child support. Currently Dad is on a graduated visitation schedule. There was 3 levels of the schedule. First was 2-3 two hour visits a week. He is on the second now, which is every other Saturday from 10a-6p. And starting mid February visits will be every other Saturday from 10a-sunday at 6pm. Then August will start the standard of Fri at 6 to Sun at 6.

Most of you know the history of the last few months with kiddos medical problems and the "fight" with Dad's wife and father. I have ROs against wife and grandpa protecting myself and both of my children. I'm not sure how likely that will play into anything so I don't want to restate what most of y'all know.

Problem: Dad is having a hissy over not getting to take the earned income credit for kiddo this filing year so he is making all sorts of threats about taking me back to court.
He says his lawyer thinks he can get a lot more time with kiddo.

My thinking is that he would need to complete the graduated schedule before more time can be ordered by the court. I've offered more visits through the week and Dad always declines them. (The judge told me to offer additional time to make up for what Dad lost on Saturday mornings.). I've never withheld visitation for any reason, and Dad says I keep Son from him when I get mad.

I'm sure he is just mad and making threats, but I'm curious on whether y'all think more time can be ordered before the graduated schedule is completed.

I really don't like the thought of going back to court so soon. And especially don't like the thought of those attorney fees.

Thanks so much!

 

[gr8rn]

He's blowing smoke. I wouldn't worry. If he tries, make sure it goes in front of the same judge who knows his history.

LdiJ knows a lot about the tax stuff, but it was always my understanding that if it was not written in the order that that goes to the primary custodial parent but this is just my layman limited knowlege.

Good to hear from you Dawn, I was wondering how you were doing.

 

[TinkerBelleLuvr]

You, as the parent who has the child more in 2009, are eligible to get earned income credit. The NCP is NEVER eligible for it. That's not to say that an NCP can't get the child tax credit, but only the CP can get:
earned income credit
child and dependent care credit

The parent who claims the child on their taxes are eligible to take:
child tax credit
additional child tax credit
higher learning credit

Exactly HOW much is he paying in support? Sometimes a judge may order the parents to alternate the child tax credit, but many times, it is dependent on how they are paying.

 

[DawnPlusTwo]

He's blowing smoke. I wouldn't worry. If he tries, make sure it goes in front of the same judge who knows his history.

LdiJ knows a lot about the tax stuff, but it was always my understanding that if it was not written in the order that that goes to the primary custodial parent but this is just my layman limited knowlege.

Good to hear from you Dawn, I was wondering how you were doing.

Thanks you!

Ldij and I have discussed the tax situation. Dad will get to claim him this year as he has odd years. (Even though there is some confusion as to whether or not he is to be considered current on CS). His main issue is not getting the EIC (which is a pretty good sized credit generally.

I hope he is just blowing smoke. He has done it many times before.

 

[CJane]

Even if Dad could get the DEDUCTION for kiddo (which would mean you'd have to sign the 8332 form) he still couldn't claim the EIC because kiddo does not live with him full time.

Let him try to take you back to court about that one.

How is the RO going to affect overnights? And will charges be pressed against Grampa/SMom?

 

[DawnPlusTwo]

You, as the parent who has the child more in 2009, are eligible to get earned income credit. The NCP is NEVER eligible for it. That's not to say that an NCP can't get the child tax credit, but only the CP can get:
earned income credit
child and dependent care credit

The parent who claims the child on their taxes are eligible to take:
child tax credit
additional child tax credit
higher learning credit

Exactly HOW much is he paying in support? Sometimes a judge may order the parents to alternate the child tax credit, but many times, it is dependent on how they are paying.

That is pretty much the discussion that he and I had the other night. He asked if he could claim him this year. I said okay. Our CO does give him ODD years, and it isn't worth the fight to me.

He actually stated to me that "its not fair that I never get any benefits" meaning money. He wound up saying he would lie and say kiddo lived with him so he could get all credits. I told him that I wished him luck on paying back the IRS for commuting tax fraud.

He pays 242 a month for current support and 50 a month toward arrears.

 

[TinkerBelleLuvr]

Is there anything in your paperwork that says that dad can claim the child only if he is current? If so, because he is paying on arrears he is NOT current.

Dad could lie about the EIC, but if it comes out that he WILLFULLY committed fraud, he will be ineligible to recieve it from anywhere of two years to ten years. So, if he and his wife chooses to have children, that would be a mighty big penalty.

If it were me, I would send IN WRITING the comment that he is ineligible to receive the EIC. Nothing like proof of WILLFUL behaviour.

 

[TinkerBelleLuvr]

If your EIC for any year after 1996 was denied and it was determined that your error was due to reckless or intentional disregard of the EIC rules, then you cannot claim the EIC for the next 2 years. If your error was due to fraud, then you cannot claim the EIC for the next 10 years.

http://www.irs.gov/publications/p17/ch36.html#en_US_publink1000174656

Rule 8. Your Child Must Meet the Relationship, Age, Residency, and Joint Return Tests

Your child is a qualifying child if your child meets four tests. The four tests are:

1. Relationship,
2. Age,
3. Residency, and
4. Joint Return.

The four tests are illustrated in Figure 36-1. The paragraphs that follow contain more information about each test.

Dad meets #1, #2, and probably #4. He does NOT meet the #3. YOU meet all of the above.

Your child must have lived with you in the United States for more than half of 2009. The following definitions clarify the residency test.

 

[liandrajade]

Oklahoma.

Currently Dad is on a graduated visitation schedule. There was 3 levels of the schedule. First was 2-3 two hour visits a week. He is on the second now, which is every other Saturday from 10a-6p. And starting mid February visits will be every other Saturday from 10a-sunday at 6pm. Then August will start the standard of Fri at 6 to Sun at 6.

Problem: Dad is having a hissy over not getting to take the earned income credit for kiddo this filing year so he is making all sorts of threats about taking me back to court.

Thanks so much!

so if i understand correctly...he is on sat 10-6 until this aug 2010 when it will go to fri-sun?....then im assuming he has to finish the graduated schedule 1st....he would have to file for a modification of your order and show enough of a change that would merit changing what got ordered in may of 09.

technically, in terms of the IRS regs, only the custodial parent can claim the child EIC...i know that parent with a court order for child support has another credit they can claim...my hubby and his ex have an informal agreement for c/s and he is not claiming his son, his ex does....they used to switch years but not anymore.... check out the link to their page below:

IRS.gov Search Results

let him huff and puff...he's lucky he even still has visitation considering all the crap he pulled recently....the other party always likes to talk crap on what they are going to do but just remember, knowledge is power and know the laws in your state, he HAS to show cause for a modification in the visitation order.

 

[DawnPlusTwo]

Even if Dad could get the DEDUCTION for kiddo (which would mean you'd have to sign the 8332 form) he still couldn't claim the EIC because kiddo does not live with him full time.

I told him that I would sign form 8332 for him so that he can take the exemption. He said he doesn't need it, he is just going to tell his tax person that kiddo lives with him. I told him he would need proof of that, and he said "ur right. Ur so much smarter than my lawyer huh? Guess we will see"

I think I may just be a little smarter than his lawyer, considering I had to remind Dad to have her put the name change and actually establish paternity in our court order 3 different times just so I could get a new birth certificate and social security card.

Let him try to take you back to court about that one.

How is the RO going to affect overnights? And will charges be pressed against Grampa/SMom?

I'm worried about the overnights honestly. He says the wife works overnight and goes to her Mom's house while the kiddo is there. He said he would stay at his Gmas house when he gets son for overnight In case he wakes up for a diaper change in the middle of the night. Dad says Grandpa won't talk to him anymore since he can't see the kiddo.

No charges against either of them. I've pretty much given up on that happening. I talked to the police chief on Dec 23rd and he had "nothing new to report". Felt like a winless battle.

 

[gr8rn]

I'm worried about the overnights honestly. He says the wife works overnight and goes to her Mom's house while the kiddo is there. He said he would stay at his Gmas house when he gets son for overnight In case he wakes up for a diaper change in the middle of the night. Dad says Grandpa won't talk to him anymore since he can't see the kiddo.

I am not sure how you could verify that. Perhaps a private detective? I am glad he told you this, but there is no way to guarantee he is not lying. And I would be worried about this as well.

As far as pressing charges, I think that you should push for this. When my son's father pushed his head in the toilet for getting pee on the seat, I first got a PFA then went to the police in his town and did what I thought was filing charges. (Ii gave a statement) Because it was such a traumatic event and I was running around looking for child therapists and dealing with a deathly ill child, I did not followup and found out that charges were never filed. It is one regret I live with to this day. He should have seen the inside of a jail cell. Because he didn't, he acts like he was in the right and I was wrong.

 

[TinkerBelleLuvr]

If it were me, I would provide the 8332. Make sure that you make a copy for yourself. In addition, I would send a gentle reminder to dad in WRITING that he may claim the child exemption, but nothing else.

You see, that court order is your friend. It gives dad "visitation". Therefore, if he claims the child, yes, he'll get the money for now, but later in the year when you BOTH get questioned on the exemption, part of your proof will be a copy of the 8332 that you gave dad, your court order awarding you sole custody, and then, the names of doctor's and hospitals that show YOUR residence as the child's residence.

To be clear, you will qualify as HOH as long as you meet the "provides more than half the support" for both children. You claim your youngest in EIC and in the child and dependent care credits.

 

[LdiJ]

If it were me, I would provide the 8332. Make sure that you make a copy for yourself. In addition, I would send a gentle reminder to dad in WRITING that he may claim the child exemption, but nothing else.

You see, that court order is your friend. It gives dad "visitation". Therefore, if he claims the child, yes, he'll get the money for now, but later in the year when you BOTH get questioned on the exemption, part of your proof will be a copy of the 8332 that you gave dad, your court order awarding you sole custody, and then, the names of doctor's and hospitals that show YOUR residence as the child's residence.

To be clear, you will qualify as HOH as long as you meet the "provides more than half the support" for both children. You claim your youngest in EIC and in the child and dependent care credits.

Quite frankly, not only would I NOT give dad form 8332, but I would claim the child myself even if I had to do a paper return. Why? Because that will guarantee that dad will get caught for fraudulently claiming EIC, and will have to pay it back.

There is over 12 billion dollars worth of EIC fraud annually, and as a taxpayer, I am sick and tired of people claiming children for EIC purposes when they are not allowed by law, to do so. The IRS estimates that 1 in 4 people who claim EIC are doing so fraudulently.

People who do that are stealing, and its no different than someone stealing someone's credit card and charging thousands of dollars of fraudulent charges.

 

[TinkerBelleLuvr]

Ldij, I respectfully disagree. Dawn already said that dad could claim the child for 2009, even though he is in arrears. It appears that the court papers say he can claim the child. I do not know if there is further clarification in the papers in regards to arrearages.

Therefore, if dad is to claim the child, he would LEGALLY need the 8332. So, if he chooses to file fraudulently, then, the court order and a copy of the 8332 would help PROVE the fraud.

 

[LdiJ]

Ldij, I respectfully disagree. Dawn already said that dad could claim the child for 2009, even though he is in arrears. It appears that the court papers say he can claim the child. I do not know if there is further clarification in the papers in regards to arrearages.

Therefore, if dad is to claim the child, he would LEGALLY need the 8332. So, if he chooses to file fraudulently, then, the court order and a copy of the 8332 would help PROVE the fraud.

But that's only if he wins the audit lottery. Yes, a LOT more people are getting audited, but there is still not a super high percentage chance that he will get audited.

However, if there is a duplicate claim to the child, he absolutely WILL get held accountable.

Now, if he has a non-conditional right, per the court orders, to claim the child for 2009, then she would have to obey that or run afoul of the court orders. However, I am thinking that I remember that his right to do so is conditional.

I am just really hot over the issue of fraudulent EIC claims. The due diligence requirements for those in our profession have become very onerous, and the fines quite heavy for preparers who go through EIC audits. We do excellent due diligence yet we have had two of our franchisees go through due diligence audits in the last few years, and they get hit with alot of fines DESPITE the heavy amount of due diligence we do.

Of course, if Dawn has low enough income that SHE qualifies for EIC, even if minimal, then she could claim the child for HOH and EIC purposes, which would accomplish the same thing, without running afoul of the court orders.