Non-custodial parent claiming child on taxes?

[leebee]

My SIL has full, sole custody of his son. His ex-wife has no parental rights, no visitation rights, and at times there has been a protection warrant in effect to keep her away from the child. The child's mother is legally not allowed to see or interact with him, pays no child support, etc. This has been the status for about three years now. My DD and SIL filed their taxes for 2021 and on Friday they learned that the IRS has kicked their return back to our tax-guy because someone else has claimed the child as a dependent on their taxes; we suspect that it is the child's mother. They are unsure what to do next. According to the tax-guy, the mother cannot claim the child and in doing so has committed tax fraud. However, what do DD and SIL do next? Do they have to file another tax return? Will they ever get the money that they are entitled to as they provide complete and sole support for this child? Will they be in trouble with the IRS because their return was rejected? It's clearly past filing time for 2021 and they don't know what to do next or where to turn. Yes, their tax-guy is aware of all this (he's the one who informed them of what's going on) and they have a call into him asking what is the next step, but his office won't be open until Tuesday morning and, quite frankly, a lot of sleep is being lost and ulcers being fed over this situation this weekend. Does anyone have any experience or insight with something like this? What do you DO if someone has fraudulently claimed your child on their tax return?

 

[Sjm9911]

No insight or experience, but its whatever is spelled out in the settlement agreement upon thier seperation. So , you need to follow that. As for recourse, that has to be done through the courts. Unfortunately, the tax person, really will have 0 clue what the settlement agreement is or have any real power in anything other then filling taxes. It may not be cost effective to go to court to reclaim the monies owed. Have your SIL file taxes sooner. It may happen again.

 

[RangerPooh]

A friend of ours has the majority of custody and as such is to receive the child tax credit. Yet has ex attempted to claim the kids. She threatened legal action due to tax fraud. He was able to edit is tax return before processed to remove the child tax credit.

 

[georgina]

However, what do DD and SIL do next?

What do you DO if someone has fraudulently claimed your child on their tax return?

Google is a great resource. The e-file website has a list of what to do if someone fraudently claims your child on a tax form, what items to gather, etc.

 

[Mackenzie Click-Mickelson]

I don't think they'll be in trouble with the IRS but it could adjust what the figures are. My dad was actually blocked from the IRS from claiming me as a dependent as I had claimed myself. It took a while, actually got the notification right around Thanksgiving that "one or more persons has attempted to claim you" jargon. Under the advice of my mom's CPA who was doing my taxes that year had advised me to file ASAP which in my case was very much warranted.


A question I would have is have the parental rights been formerly terminated rather than saying they don't have parental rights, legally that may matter. But in any case I would honestly suggest they wait for their tax specialist as hard as that is. They should be the ones to direct them what to do and may do things for them on their side. They are more intimately familiar with the specifics of their situation.

 

[barkley]

Google is a great resource. The e-file website has a list of what to do if someone fraudently claims your child on a tax form, what items to gather, etc.

absolutely. the irs has a specific form for this when they file a new paper return reaffirming they are eligible to claim the dependent (cpa should be well aware of the process). it may take quite a long while for the irs to resolve but it can be resolved (i know someone who dealt with this-they ended up w/the appropriate deduction while their ex ended with a big tax bill, penalty and interest).

 

[Sjm9911]

It still is dependent on the settlement agreement. You need to show them that its your tax break, the IRS isnt privy to your divorce papers. You must provide them to show proof. If it isnt listed in them you may be out of luck.

 

[Mackenzie Click-Mickelson]

A friend of ours has the majority of custody and as such is to receive the child tax credit. Yet has ex attempted to claim the kids. She threatened legal action due to tax fraud. He was able to edit is tax return before processed to remove the child tax credit.

As another poster said a lot can be dependent on the settlement. Having the majority of custody does not mean the other is not entitled to tax credit. In fact my parents it was 60 (my mom)/40 (my dad) custody but one parent always filed with me as a dependent (my dad) and one parent always filed with my sister (my mom) as dependent. Another common one is to switch every other year. Ex spouses figure this stuff out usually during the divorce proceedings. Not all couples do things the same way.

 

[barkley]

irs publication 504 (2021) explains exactly how/who is eligible to claim dependent.

 

[ctinct]

I had this happen to me. The IRS could not tell me who the other person was, but I’m certain it would have been the ex. I explained to the IRS what our divorce decree stipulated and
offered to send a copy in. (We alternated years.) They said that wouldn’t be necessary, and I never heard from them again and got the deduction that year. I imagine they contacted him and he realized he was wrong ( although I’m inclined to think it was NOT a mistake on his part, he likely claimed it was and backed down.)

All this to say, isn’t this addressed in the divorce decree? Even if not, once they explain the financial and legal details, I’m sure it will be resolved quickly. The IRS is not the scary boogie man a lot of people think it is. Please tell him not to worry. Once the facts are presented it should be resolved in his favor. Good luck.

 

[AgentMama]

It still is dependent on the settlement agreement. You need to show them that its your tax break, the IRS isnt privy to your divorce papers. You must provide them to show proof. If it isnt listed in them you may be out of luck.

I know this is at least part of it. My cousin's ex has claimed their children a couple of times on years that weren't theirs. My cousin has had to send the settlement papers to be able to claim their kids on the proper years. Seems other posters have given info for how to handle if the settlement papers don't specifically address claiming dependents.

 

[RangerPooh]

As another poster said a lot can be dependent on the settlement. Having the majority of custody does not mean the other is not entitled to tax credit. In fact my parents it was 60 (my mom)/40 (my dad) custody but one parent always filed with me as a dependent (my dad) and one parent always filed with my sister (my mom) as dependent. Another common one is to switch every other year. Ex spouses figure this stuff out usually during the divorce proceedings. Not all couples do things the same way.

I agree, that each has their own settlement per their divorce decree. In my friends case, her ex was planning to deprive her of what was legally hers based on their divorce settlement. He is all about denying her what she is legally entitled to.

 

[TAX GUY]

Sounds like they need a new/better tax guy. There are ways to file and to get the exemption and any credits that may go along with it. Have them fins a competent, professional preparer. One that is actually licensed and able to represent them before the IRS (to help resolve this issue).

There are so many false and inaccurate replies in this thread. Seek out a professional and be prepared to pay for their services. I can't/won't advise mostly because of liability (not giving out tax advice without knowing all the circumstances or for free/a non-client). There are *fairly* easy ways to get this resolved, they just need to find someone that knows what to do.

 

[Mackenzie Click-Mickelson]

I agree, that each has their own settlement per their divorce decree. In my friends case, her ex was planning to deprive her of what was legally hers based on their divorce settlement. He is all about denying her what she is legally entitled to.

I guess I didn't that from your previous reply. Legally entitled to in the case of an actual divorce decree varies. Both parents can be legally entitled to claiming a child as a dependent but that may not be the way it was set up in the divorce decree. I def. agree that both ex partners should be abiding by the divorce decrees so if the ex was not supposed to claim dependents due to what was written in the divorce decree then that's what should not have occurred .

 

[tvguy]

I'm sure the IRS has they come up a lot. All kinds of odd things can come up in divorce decrees. When I was a Little League President I had to get a waiver for two kids who, by Little League rules, had no right to play in our league. A Judge picked our league and spelled it out in the divorce decree. Little League at first refused the waiver. The Judge was pretty cool when I contacted him. He gave me a letter to give to Little League asking for the name of a specific person who was refusing to comply with the waive request. Poof, I had the waiver I needed in the return mail.