Who gets to claim child as dependent?

[moynihan1129]

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

My daughter was born in March this year. Since she has been born, I updated my W4 at work to claim her as a dependent. She gets health benefits through my employer. Her mother and I lived together (were not married) in my house until about 2 months ago wen we broke up. Her mother never helped with the mortgate, utilities, etc as far as housing expenses. She occasionally bought diapers and some baby food. I pay for all daycare and all expenses incuding cloting, etc. The only expenses that she incurs for our daughter is food and diapers on her days of visiation. She also has no housing expense as she is staying with a friend. We have joint custody with me having physical placement. Her visitaion is every sunday night and alternating saturday nights. My ex informed me over the weekend that she has also decided to claim our daughter on her W4 so that she will get an extra $20 or so a week from her part time job. She also advised me that she plains to claim her on her taxes to get the child tax credit, EIC, etc so that she can use the money to get her own apartment and that there is nothing I can do because she only needs the W2 from her part time job and will file before I get everything I need to file (W2, Property tax, student loan interest statements, mortgage interest statements, 401K, stocks, etc). Is she entitled to claim her as a dependent even though our daughter does not physically live with her and she pays less than 5% of all of her expenses? There is not child support order as I did not file since it did not seem woth the $10 a week I might get. Rather, I chose not to since I know she can't even afford herself on her own. I just do not want to do anything illegal as far as claiming her on my taxes and at the same time do not believe she is entitled to the tax benefits of an expense she does not incur. Any advice is appreciated.

 

[RR Rodriguez]

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

My daughter was born in March this year. Since she has been born, I updated my W4 at work to claim her as a dependent. She gets health benefits through my employer. Her mother and I lived together (were not married) in my house until about 2 months ago wen we broke up. Her mother never helped with the mortgate, utilities, etc as far as housing expenses. She occasionally bought diapers and some baby food. I pay for all daycare and all expenses incuding cloting, etc. The only expenses that she incurs for our daughter is food and diapers on her days of visiation. She also has no housing expense as she is staying with a friend. We have joint custody with me having physical placement. Her visitaion is every sunday night and alternating saturday nights. My ex informed me over the weekend that she has also decided to claim our daughter on her W4 so that she will get an extra $20 or so a week from her part time job. She also advised me that she plains to claim her on her taxes to get the child tax credit, EIC, etc so that she can use the money to get her own apartment and that there is nothing I can do because she only needs the W2 from her part time job and will file before I get everything I need to file (W2, Property tax, student loan interest statements, mortgage interest statements, 401K, stocks, etc). Is she entitled to claim her as a dependent even though our daughter does not physically live with her and she pays less than 5% of all of her expenses? There is not child support order as I did not file since it did not seem woth the $10 a week I might get. Rather, I chose not to since I know she can't even afford herself on her own. I just do not want to do anything illegal as far as claiming her on my taxes and at the same time do not believe she is entitled to the tax benefits of an expense she does not incur. Any advice is appreciated.

The W4 thing isnt really a big deal, she can claim as high as she wants to lower her with holding - the problem comes in come filing time.

As far as I can see the credits and claim is yours.

To make sure you are able to get the credit, it really comes down to who claims her first. So get down to H&R Block as soon as you get your w2 and electronically file, that way if she tries in the same year it will bounce back, that the kid has already been claimed.

Then, if she disagree's she can file a complaint, where it will come to light that it is you who has right to claim the child.

Thats all I know, about that. Oh yea, the mom because of her really low income would get a much much highter credit for the kid... just putting that out there...

 

[RR Rodriguez]

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

She also advised me that she plains to claim her on her taxes to get the child tax credit, EIC, etc so that she can use the money to get her own apartment and that there is nothing I can do because she only needs the W2 from her part time job and will file before I get everything I need to file (W2, Property tax, student loan interest statements, mortgage interest statements, 401K, stocks, etc).

Unfortunately she is right... whoever gets there first is going to get the credit. Without a problem, she might have the money from the feds as early as the next day...

I guess you can just submit with your w2 to keep her from the credit, and have your taxes ammended as soon as the rest of the documents come in... But thats another pain in the butt...

Is she entitled to claim her as a dependent even though our daughter does not physically live with her and she pays less than 5% of all of her expenses?

You can submit the complaint once she has done it, then the IRS will eventually get around to investigating, then she will be in the IRS's debt, which is not the place to be.

She is not at all entitled, but that wont matter to her when she is looking at getting thousands more then she made all year...

 

[moynihan1129]

Advice is greatly appreciated. She gets her W2 online (walmart LOL) so it will be available almost immediately. She will likely file before me and I will just have to file a complaint so they can investigate. From what I heard (hearsay), it is likely that this will just delay my return and result in her having to pay it back with interest. Is there a possibility of her getting penalties or any legal ramification for claiming our daughter knowing she is not really entitled to it? I have been saving everything since we split up because I am expecting to be audited.

 

[RR Rodriguez]

Advice is greatly appreciated. She gets her W2 online (walmart LOL) so it will be available almost immediately. She will likely file before me and I will just have to file a complaint so they can investigate. From what I heard (hearsay), it is likely that this will just delay my return and result in her having to pay it back with interest. Is there a possibility of her getting penalties or any legal ramification for claiming our daughter knowing she is not really entitled to it? I have been saving everything since we split up because I am expecting to be audited.

Oh man, she is getting that money.

It will delay your return and prevent you from filing electronically, and it may take ForEver for them to get to you, but you are in the right as far as claiming the kid, I doubt there will be legal rams, but you can bring it before your family judge that she did that, and you want her to be held responsible if she does it again.

She absolutely will have to pay back the IRS with penelties and interest, which will most likely keep her from ever getting a tax return again (until she is square with the IRS) ...

Good luck sir... (great idea by the way to save the bills, and the ammount you pay for the kid.) as long as the child lives with you 60% of the time, the credit is yours, even without any further proof needed.... better safe then sorry though.

 

[Antigone*]

Advice is greatly appreciated. She gets her W2 online (walmart LOL) so it will be available almost immediately. She will likely file before me and I will just have to file a complaint so they can investigate. From what I heard (hearsay), it is likely that this will just delay my return and result in her having to pay it back with interest. Is there a possibility of her getting penalties or any legal ramification for claiming our daughter knowing she is not really entitled to it? I have been saving everything since we split up because I am expecting to be audited.

Moynihan,

Before you take the advice of this poster, please wait for another more informed opinion. I know that his information is not all correct. LdiJ or irsos our resident tax professionals should be around shortly.

 

[RR Rodriguez]

Moynihan,

Before you take the advice of this poster, please wait for another more informed opinion. I know that his information is not all correct. LdiJ or irsos our resident tax professionals should be around shortly.

Being in NY, and having worked in a tax office, and having gone over the guidelines numerous times, I doubt there will be any disagrement to my answer..

Unless the guidelines have changed since the last time they changed on 06 or 07, I doubt I am mistaken..


But I could be wrong about the legal remifications due to her claiming when she should know she cant, but whos to say, she knows she cant?


I'll wait to see....

 

[moynihan1129]

But I could be wrong about the legal remifications due to her claiming when she should know she cant, but whos to say, she knows she cant?

She knows she isnt really entitled to claim and acknowledges that she hasn't contributed financially, but is thinking she could use the money to get her own place. Her exact words were, "I don't understand why we both can't claim her." When I explained that at irs.gov it says a dependent is a child that resides with you 50% or more of the time and whom you pay 50% or more of their expenses, she said, "Whatever Mr. know it all." If we had joiing 50-50 custody and she contributed 50%, I would have no problem claiming alternating years, but that is clearly not the case.

 

[TinkerBelleLuvr]

http://www.irs.gov/pub/irs-pdf/p501.pdf

Start at page 12

Qualifying Child

There are five tests that must be met for a child to be your qualifying child. The five tests are:

1. Relationship,
2. Age,
3. Residency,
4. Support, and
5. Special test for qualifying child of more than one person.

See table six.
Publication 501 (2008), Exemptions, Standard Deduction, and Filing Information

Table 6. When More Than One Person Files a Return Claiming the Same Qualifying Child (Tie-Breaker Rule)

Caution. If a child is treated as the qualifying child of the noncustodial parent under the rules for children of divorced or separated parents, see Applying this special test to divorced or separated parents .

IF more than one person files a return claiming the same qualifying child and
two of the persons are parents of the child and they do not file a joint return together,
. . . THEN the child will be treated as the qualifying child of the. . .parent with whom the child lived for the longer period of time during the year.

Mom won't qualify for the following reasons:
Child has lived with dad more than mom

Now, even if mom says it's temporary, mom won't get it for the following reason:

IF more than one person files a return claiming the same qualifying child and . . .two of the persons are parents of the child, they do not file a joint return together, and the child lived with each parent the same amount of time during the year,

THEN the child will be treated as the qualifying child of the. . .
parent with the higher adjusted gross income (AGI).

if mom files first, then dad can file a paper return. It will delay the return, but dad will get the refund. Eventually, towards the end of the year, the IRS will send paperwork to both parents and it is up to the parents to show why THEY qualify.

Now, with this said and done, there wasn't anything in the court order that said WHO gets the child as a dependent for child tax credit? Regardless, the custodial parent is the only one who will qualify for the earned income credit or child tax credit.

 

[Antigone*]

http://www.irs.gov/pub/irs-pdf/p501.pdf

Start at page 12


See table six.
Publication 501 (2008), Exemptions, Standard Deduction, and Filing Information



Mom won't qualify for the following reasons:
Child has lived with dad more than mom

Now, even if mom says it's temporary, mom won't get it for the following reason:


if mom files first, then dad can file a paper return. It will delay the return, but dad will get the refund. Eventually, towards the end of the year, the IRS will send paperwork to both parents and it is up to the parents to show why THEY qualify.

Now, with this said and done, there wasn't anything in the court order that said WHO gets the child as a dependent for child tax credit? Regardless, the custodial parent is the only one who will qualify for the earned income credit or child tax credit.

Thanks Tink...I wasn't up to researching at the moment, but I knew that RR Rodriguez was not complete in his answer.

 

[moynihan1129]

http://www.irs.gov/pub/irs-pdf/p501.pdf

Start at page 12


See table six.
Publication 501 (2008), Exemptions, Standard Deduction, and Filing Information



Mom won't qualify for the following reasons:
Child has lived with dad more than mom

Now, even if mom says it's temporary, mom won't get it for the following reason:


if mom files first, then dad can file a paper return. It will delay the return, but dad will get the refund. Eventually, towards the end of the year, the IRS will send paperwork to both parents and it is up to the parents to show why THEY qualify.

Now, with this said and done, there wasn't anything in the court order that said WHO gets the child as a dependent for child tax credit? Regardless, the custodial parent is the only one who will qualify for the earned income credit or child tax credit.

Great! Thank you so much. Court order does not say anything about claiming. My lawyer said that would be included in child support order which I have not filed.

 

[Isis1]

i'm still a little tickered LD hasn't seen this and responded.

 

[BannedRodriguez]

Thanks Tink...I wasn't up to researching at the moment, but I knew that RR Rodriguez was not complete in his answer.

NO What you said was in Fact

Before you take the advice of this poster, please wait for another more informed opinion. I know that his information is not all correct. LdiJ or irsos our resident tax professionals should be around shortly.

The fact is that poster was absolutely correct right down to the fact he stated dad wouldn't be able to electronically file, after mom did...

I actually think you owe that other Rodriguez a Apology. And the post you reported for whatever reason you did needs to be replaced Immediately.

 

[Isis1]

NO What you said was in Fact




The fact is that poster was absolutely correct right down to the fact he stated dad wouldn't be able to electronically file, after mom did...

I actually think you owe that other Rodriguez a Apology. And the post you reported for whatever reason you did needs to be replaced Immediately.

that's actually up to admin's discretion. you can take that up with her.

 

[Antigone*]

NO What you said was in Fact




The fact is that poster was absolutely correct right down to the fact he stated dad wouldn't be able to electronically file, after mom did...

I actually think you owe that other Rodriguez a Apology. And the post you reported for whatever reason you did needs to be replaced Immediately.

"That" poster is you and you are playing games here, which is something we don't do here.

I did not say your information was completely wrong, and I stand by what I said. In fact you sounded very unsure of yourself in your first answer. I asked for the OP to wait for a more informed tax professional to answer his questions ~ one who wouldn't tell the OP to "run to H&R Block" or would say "that's all I know".

You have been reckless in some of your responses in this forum and have even lacked decorum, so much so, that obviously the moderator decided to give you a time out.

I will not apologize to you; but I will tell the OP that in Tinkerbell's answer was complete.