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CO says we claim SD

loveallmygirls's picture

Our CO states that we claim oldest SD, but we've "allowed" BM to claim her the last few years, though we never signed anything. She is with us 30% of the time. Can we claim her this year per the C/O? What could the ramifications be? 

Sandybeaches's picture

I would say read the IRS guideline.  It clearly states the answer there.  I believe you have to have the child living with you more than 50% of the time and or  provide more the 50% of the Childs needs. (Housing clothes etc.).

IRS law supersedes any CO.  CO's are only for 50/50 arrangements but when called in to question,  IRS laws and guidelines always supersede.  

It sounds like BM has the child more than 50% and would therefore be providing more than 50%.  

What are the ramifications? That should go without saying...  AUDIT!!!!!!!!!!!!!!!!!!!

justmakingthebest's picture

That isn't the case if there is a court order dictating who gets to claim the child. 

loveallmygirls's picture

Well, we pay a substantial amount in child support so we do provide a significant portion of her needs. But yes, I am concerned that we will get rejected because we've allowed her to be claimed by BM for the past few years, even though the CO states my DH gets to claim her. 

loveallmygirls's picture

I would also add that we pay half of all school, medical, and extracurricular costs on top of cs. The cs is supposed to account for the amount of time bm has the kids, so we should be paying for half of their costs- if not more honestly-even if they aren't with us 50% of the time. 

ESMOD's picture

It sounds like technically he might be able to claim her.. but should probably double check with a tax expert vs polling an internet vent board.  As someone else said.. the IRS regs will likely trump anything the CO may say... because if you put something in a CO that is "illegal".. you can't enforce an illegal contract per se.

But.. even if he is legally permitted and the IRS regs would allow it.. if she has already filed and claimed her.. there is paperwork that would have to be done.. and there may be a fight out of it.  I certainly wouldn't just fill my taxes out.. claim her.. ladida and hope it would work out ok.  Because if BM has already claimed her.. they will likely reject his return.. a big headache for you guys.

I would also expect her to not want to give up what has been done in precedence.. because of the issues surrounding monthly credits for children that are proposed.. the stimulus etc.. the person claiming may have a financial benefit and she may not give that up lightly.. and honestly.. I might expect she already HAS claimed her this year.

Get good advice from an expert.. it will save you headaches in the long run.

hereiam's picture

I assume BM is the cusodial parent? BM (as the custodial parent) would need to provide your husband with a signed 8332 form, allowing your husband to claim the child.

Do you know if BM has already filed and claimed SD? The first parent to file a return claiming the child will be accepted.

Your husband could file for contempt and have BM forced to sign the 8332. My DH had to do this (many years ago). Even though the CO gave him the right to claim her, BM had to provide the 8332.

tog redux's picture

Yes this - if BM is the custodial parent, she has to fill out this form. 

My DH never bothered to claim SS on "his" years, because BM was such a PITA and he didn't want to deal with her.

My guess is that BM has already claimed her this year in your case. 

NoWireCoatHangarsEVER's picture

You can attach the court order with your taxes. After 2007 she has to sign a form called 8858 I believe allowing your husband to claim her. If she won't sign it then you have to file an Order with family court for contempt to get your tax money from her that was owed to you 

weightedworld's picture

We have a HCBM who feels it completely necessary to claim every year because she can. I'm almost positive she has an alarm sent on the tax season opener to get there first in line. She does this to all baby dads. 

2 years ago bf was able to claim and got rejected from efile because she had already claimed their daughter. He paper filed, sent in all of his information including the court order and he was awarded claim from the IRS. 

This year was also his year to claim and as clock work she was already claimed and efile was rejected. Following same suit. Paper file (which is taking forever due to pandemic) with court order attached. 

His previous lawyer had advised to do this and then since turned judge and now that he has a new attorney the new attorney says go for it but if she wanted to she could fight it as it does fall under the IRS guidelines. 

It will be interesting to see how all of this plays out especially considering all of the extra covid benefits that go along now days. 

Sandybeaches's picture

I would either contact the IRS and ask or call a tax preparer and ask them.  

I think allowing BM to claim other years and the fact that the child lives there more than 50% of the time might hurt your case but I wouldn't second guess it or take our word for it.  We are just people like you.  I would ask an expert.  I find tax preparers are more than helpful and willing to answer questions

Rags's picture

It is mind boggling to me how many people who have a CO cause themselves issues by not sticking closely to it and holding the opposition to the stipulations of the CO.  In our case the opposition by all indications never even read it and would get all whiny and play the victim when we would smack them with a rolled up copy of the CO when they pulled stupid shit.  It became repeatedly apparent that they had no idea what was in the CO which gave us a whole lot of leeway and flexibility in protecting the best interests of my SS and ...... facilitating what we wanted.

If the CO grants one side the tax deduction for the kid, use the damned tax deduction as stipulated in the CO.  It is not rocket science.

If the toxic opposition tries to scam the deduction in violation of the CO, nail them year after year by going after the deduction with the IRS and putting the IRS on the scent of the scamming opposition perpetrator... and .... nailing the toxic opposition with a contempt motion in family court.

Double up on the consequences against the manipulative side of the equation.

I recognize that this OP's SO granted his X the deduction counter to what is stipulated in the CO.  Bad move IMHO.

Sandybeaches's picture

"If the CO grants one side the tax deduction for the kid, use the damned tax deduction as stipulated in the CO.  It is not rocket science."

It's not that easy.  And in OP's case they should have at the very least notified BM around the first of the year to let her know this year DH was going to follow the CO and try to claim the kids as his dependents on his taxes.  It doesn't sound like they did that so why would BM think it was any different than last year and she shouldn't claim them?  and with that said I still think they need to follow the IRS guideline for claiming dependents and I still think that would be in BM's favor.  

I also think your idea that BM is scamming because she isn't following what a CO says about claiming dependents is what's mind boggling.  I can't believe that you think a CO supersedes the IRS laws.  

hereiam's picture

If the CO grants one side the tax deduction for the kid, use the damned tax deduction as stipulated in the CO.  It is not rocket science.

Nope, not rocket science, the IRS is very clear about it's rules. And a state CO is not the golden ticket.